'  (inclcUv*^^^. 


•^       ^^ 


^3^ 


'Jfcft 


\^ 


CIVIL  CODE 


OF    THE 


STATE  OF  LOUISIANA: 


WITH    THE 


STATUTORY  AMENDMENTS,  FROM  1825  TO  1853, 
INCLUSIVE  ; 


REFERENCES   TO    THE    DECISIONS    OF    THE    SUPREME    COURT    OF 
LOUISIANA  TO  THE  SIXTH  VOLUjME  OF  ANNUAL  REPORTS. 


COMPILED  AND  EDITED  BY 


THOMAS    GIBBES    MORGAN, 


COUNSELLOR  AT  LA.W, 


NEW  ORLEANS: 
BLOOMFIELD    &    STEEL. 

M.DCqCLXI. 


EsTEBED,  according  to  Act  of  Congress,  in  the  year  1S54,  by 

J.  B.  STEEL, 

ii  me  CTerk's  Office  of  the  District  Court  of  the  United  States,  for  the  Eastern  District 
of  LouisiansL 


J('H>  F,  Teow, 
I'nawr,  Stereotyper,  and  Electrotrpei; 

46,  43  &  50  Greece  Street, 
Beiireen  Grand  &  Brtwme,  New  York. 


ADVERTISEMENT. 


This  Edition  of  the  Civil  Code  of  Louisiana  is  a  reprint  of  the 
Edition  of  1825,  published  by  authority  of  the  State.  The 
Editor  lias  not  felt  at  liberty  to  make  any  alterations  in  the 
text,  except  to  correct  manifest  errors.  Numerous  discrepancies 
between  the  French  and  English  texts  have  been  noted; — many 
others  will  doubtless  be  detected  by  the  critical  reader.  The 
Statutes  passed  during  the  session  of  1853  not  having  been 
published  in  pamphlet  form  at  the  time  the  work  was  prepared 
for  the  press,  they  are  refei*red  to  by  number  and  date.  It  was 
the  intention  of  the  Editor  to  have  noted  the  decisions  of  the 
Supreme  Court  up  to  the  close  of  the  year  1852,  but  at  this 
date  none  have  been  published  later  than  the  Sixth  Annual. 

Baton  Rotjqb,  Louisiana,  June^  1853. 


ABBREVIATIONS. 


C.  P. — Code  of  Practice. 

M. — Martin's  Reports,  Old  Series.  12  vols. 

N.  S.— Martin's  Reports.  New  Series,  8  vols. 

L. — Louisiana  Reports,  19  vols. 

R. — Robinson's  Reports,  12  vols. 

A. — Louisiana  Annual  Reports,  6  vols. 


Digitized  by  the  Internet  Archive 
in  2010  with  funding  from 
Duke  University  Libraries 


http://www.archive.org/details/civilcodeofstateOOIoui 


TABLE   OF  TITLES,   ETC. 


PAOB 

Preliminary  Title.  Of  the  general  definition  of  rights  and  of  the  promul- 
gation of  the  laws 1 

Ohap.  1.  Of  law ib. 

2.  Of  the  publication  of  the  laws ib. 

3.  Of  the  effects  of  laws 2 

4.  Of  the  apphcation  and  construction  of  laws 3 

5.  Of  the  repeal  of  laws 4 


BOOK  I. 

OF    PERSONS. 

Title  I.  Of  the  distinction  of  persons 5 

II.  Of  domicil,  and  the  manner  of  changing  the  same 7 

III.  Of  absentees 8 

Chap.  1.  Of  the  curatorship  of  absentees ih. 

2.  Of  the  putting  into  provisional  possession  the  heirs  of  an 

absentee 9 

8.  Of  the  effects  of  absence  upon  the  eventual  rights  which  may 

belong  to  the  absentee 12 

4.  Of  the  effects  of  absence  respecting  marriage ib. 

5.  Of  the  care  of  minor  children  where  the  father  has  disap- 

peared    ib. 

Title  IV.   Of  husband  and  wife 18 

Ohap.  1.  Of  marriage ib. 

2.  How  marriages  may  be  contracted  or  made ib. 

3.  Of  the  celebration  of  marriages 15 

4.  Of  the  nullity  of  marriages IG 

5.  Of  the  respective  rights  and  duties  of  married  persons 17 

6.  Of  the  dissolution  of  marriage 18 

7.  Of  second  marriages ib. 

Title  V.  Of  the  separation  from  bed  and  board 19 

Chap.  1.  Of  the  causes  of  separation  from  bed  and  board ib. 

2.  Of  the  proceedings  of  separation  from  bed  and  board 21 


TABLE 


8.  Of  the  provisional  proceedings  to  which  a  suit  for  separation 

may  give  occasion ib, 

4.  Of  objections  to  the  action  of  separation  from  bed  and  board  22 

5.  Of  the  eftects  of  separation  from  bed  and  board ib. 

Title  VI.  Of  master  and  servant 23 

Chap.  1.  Of  the  several  sorts  of  servants ib. 

2.  Of  free  servants ib. 

3.  Of  slaves 28 

Title  VII.  Of  father  and  child 33 

Chap.  1.  Of  children  in  general ib. 

2.  Of  legitimate  children 3-i 

Sect.  1.  Of  legitimacy  resulting  from  marriage ib. 

2.  Of  the  manner  of  proving  legitimate  filiation 35 

Chap.  3.  Of  illegitimate  children 36 

Sect.  I.  Of  legitimation ib. 

2.  Of  the  acknowledgment  of  illegitimate  children 37 

Chap.  4,  Of  adoption 38 

5.  Of  paternal  authority ib. 

Sect.  1.  Of  the  duties  of  parents  towards  their  legitimate  children, 

tSL'C,  and  of  legitimate  children  towards  their  parents,  ib. 
2.  Of  the  duties  of  parents  towards  their  natural  children, 

and  of  natural  children  towards  their  parents 40 

Title  VIII.  Of  the  minors,  of  their  tutorship,  curatorship,  and  emanoipa 

tion 41 

Chap.  1.  Of  tutorship ib. 

Sect.  1.  General  dispositions ib. 

2.  Of  tutorship  by  nature 42 

3.  Of  tutorship  by  will 43 

4.  Of  tutorship  by  the  efiect  of  the  law ib. 

5.  Of  dative  tutorship 44 

G,  Of  the  under  tutor 45 

7.  Of  family  meetings 46 

8.  Of  the  causes  which  dispense  or  excuse  from  the  tutorship  47 

9.  Of  the  incapacity  for,  the  exclusion  from  and  deprivation 

of  tutorship 49 

10.  Of  the  administration  of  the  tutor ib. 

Chap.    2.  Of  the  curatorship  of  minors 57 

3.  Of  emancipation 59 

Title  IX,  Of  persons  insane,  idiots  and  other  persons  incapable  of  admin- 
istering their  estates 01 

Chap.  1.  Of  the  interdiction  and  curatorship  of  persons  incapable  of 
administering  their  estates,  whether  on  account  of  in- 
sanity or  of  some  other  infirmity ib. 

2.  Of  the  other  persons  to  Avhom  curators  are  appointed C4 

Title  X.  Of  corporations 05 

Chap.  1.  Of  the  nature  of  corporations,  of  their  use  and  kinds ib. 

2    Of  the  rights  and  privileges  of  corporations  and  of  their  in- 
capacities    ib. 

3.  Of  the  dissolution  of  corporations 08 


viii  TABLE. 


Viil 


BOOK  II. 

OF  THINGS,  AND  OF  THE  DIFFERENT  MODIFICATIONS  OF  PROPERTY 

PAGE 

Title  I.  Of  things 69 

Chap.  1.  Of  the  division  of  things H 

2.  Of  iminovahlcs 71 

3.  Of  movables 72 

4.  Of  estates  considered  in  their  relation  to  those  who  possess 

them 73 

Title  II.  Of  ownership 74 

Chap.  1.  General  principles ^5. 

2.  Of  the  right  of  accession  to  what  is  produced  by  the  thing. .  76 

3.  Of  the  right  of  accession  to  what  unites  or  incorporates  itself 

with  the  thing 77 

Sect.  1.  Of  the  right  of  accession  in  relation  to  immovables ib. 

2.  Of  the  right  of  accession  in  relation  to  movables 79 

Title  III.  Of  usufruct,  use  and  habitation 81 

Chap.  1.  Of  usufruct H. 

Sect.  1.  General  principles ih. 

2.  Of  the  right  of  the  usufructuary 82 

3.  Of  the  obligations  of  the  usufructuary 81 

4.  Of  the  obligations  of  the  owner 89 

5.  How  usufruct  expires 90 

Chap.  2.  Of  use  and  habitation 93 

Title  IV.  Of  predial  servitudes  or  servitudes  of  land 95 

Chap.  1.  General  principles if>. 

2.  Of  servitudes  which  originate  from  the  natural  situation  of 

the  place 97 

3.  Of  servitudes  imposed  by  law ib. 

Sect.  1.  Of  walls,  fences  and  ditches  in  common 99 

2.  Of  the  distance  of  the  intermediary  works  required  for  cer- 

tain buildings 101 

3.  Of  sights  on  the  property  of  a  neighbor ib. 

4.  Of  the  manner  of  carrying  off  rain  from  the  roof ib. 

5.  Of  the  right  of  passage  and  of  way ib. 

Chap.  4.  Of  conventional  or  voluntary  servitudes 103 

Sect.  1.  Of  their  ditlcrent  kinds ib. 

2.  IIow  such  servitudes  are  established 105 

3.  IIow  they  are  acquired 108 

4.  Of  the  rights  of  the  proprietor  of  the  estate  to  which  the 

servitude  is  due 110 

5.  How  servitudes  are  extinguished 112 

Title  V.  Of  fixing  the  limits  and  surveying  of  lands 117 

VI.  Of  new  works,  the  erection  of  which  can  be  stoi)pcd  or  pre- 
vented     12] 


TABLE.  ix 

BOOK  III. 
OF  THE  DIFFERENT  MODES  OF  ACQUIRING  THE  PROPERTY  OF  THINGS. 

PAOK 

Preliminary  Title.  General  dispositions 124 

Title  I.  Of  successions ib. 

Chap.  1.  Of  the  ditferent  sorts  of  successions  and  heirs ib. 

2.  Of  legal  successions 126 

Sect.  1.  General  rules ib. 

2.  Of  representation ib. 

3.  Of  succession  falling  to  descendants 127 

4.  Of  succession  falling  to  ascendants 128 

5.  Of  the  succession  of  collaterals 129 

Chap.  3.  Of  irregular  successions 130 

4.  In  what  manner  successions  are  opened 132 

5.  Of  the  incapacity  and  unworthiness  of  heirs 134 

6.  In  -what  manner  successions  are  accepted  or  renounced 137 

Sect.  1.  Of  the  acceptance  of  successions ib. 

2.  Of  the  renunciation  of  successions 142 

3.  Of  the  henefit  of  inventory  aud  the  delays  for  deliberating  144 
Chap.  7.  Of  the  seals  and  of  the  administration  of  vacant  estates,  &c.  150 

Sect.  1.  Of  the  seals  and  of  the  affixing  and  taking  off  the  same. .     ib. 

2.  Of  the  administration  of  vacant  successions 152 

§  1.  General  dispositions ib. 

2.  Of  the  inventory  of  vacant  successions  and  others 

subject  to  administration 153 

3.  Of  the  appointment  of  curators  of  such  successions, 

and  of  the  securitj  they  are  bound  to  give 155 

4.  Of  the  duties  and  powers  of  such  curators 158 

5.  Of  the  causes  for  which  they  may  be  dismissed  or 

superseded 163 

6.  Of  the  sale  of  the  effects  and  of  the  settlement  of  the 

successions  thus  administered ib. 

7.  Of  the  account  to  be  rendered  by  the  curators  and 

the  commission  due  to  them 169 

8.  Of  the  duties  of  curators  whose  administration  is 

prolonged  beyond  the  legal  term 172 

9.  Of  the  appointment  of  counsel  to  absent  heirs,  and 

of  their  dufies 173 

Clap.  8.  Of  partition  and  of  tlie  collation  of  goods 174 

Sect.  1.  Of  the  j)artition  of  successions ib. 

§  1.  Of  the  nature  of  partition  and  of  its  several  kinds. . .  ib. 

2.  Among  what  persons  partition  can  be  sued  for 176 

3.  In  what  manner  the  judicial  pai'tition  is  made 178 

4.  How  the  notary  must  proceed  in  the  judicial  par- 

tition    181 

Sect.  2.  Of  collations 186 

§  1.  What  collation  is  and  by  whom  it  is  duo ib 

2.  To  whom  the  collation  is  due,  and  what  things  are 

subject  to  it 188 

3.  How  collations  are  made 189 

Sect.  3.  Of  the  payment  of  debts 195 

4.  Of  the  effects  of  partition 199 


X  TABLE. 

PAGB 

§  1.  Of  tlio  warranty  of  partition . .     199 

2.  Of  the  rescission  of  partition 201 

Title  II.  Of  donations  inter-vivos  and  mortis  causa 203 

Chap.  1.  General  dispositions ib, 

2.  Of  the   capacity  necessary  for  disposing  and  receiving  by 

such  donations ih, 

3.  Of  the  disposable  portion,  and  of  its  reduction  in  case  of 

excess 206 

Sect.  1.  Of  the  disposable  portion  and  the  legitime i&. 

J2,.  Of  the  reduction  of  the  donations  which  exceed  the  dis- 
posable portion 207 

Chap.  4.  Of  the  dispositions  reprobated  by  law  in  such  donations 209 

5.  Of  donations  inter-vivos  (between  living  persons) ib. 

Sect.  1.  General  dispositions •?&. 

2.  Of  the  form  of  donations  inter-vivos 211 

3.  Of  tlie  exceptions  to  the  rule  of  their  irrevocability 213 

Chap.  6.  Of  dispositions  mortis  causa  (in  prospect  of  death) 215 

Sect.  1.  Of  the  testament il). 

2.  General  rules  on  the  form  of  testaments ib. 

3.  Particular  rules  on  the  form  of  certain  testaments 218 

4.  Of  testamentary  dispositions 219 

§  1.  Of  universal  legacies il). 

2.  Of  legacies  under  an  universal  title ib. 

3.  Of  disinherison 220 

4.  Of  particular  legacies 221 

5.  Of  the  opening  and  proof  of  testaments,  and  of  testa- 

mentary executors : 223 

6.  Of  the  revocation  of  testaments  and  of  their  caducity  228 

7.  General  rules  for  the  interpretation  of  legacies 230 

Ohap.  7.  Of  partitions  made  \>j  parents  and  other  ascendants  among 

their  descendants 231 

8.  Of  donations  made  by  marriage  contract  to  the  husband  or 

wife,  &c 232 

9.  Of  donations  between  married  persons,  &c 233 

Title  III.  Of  obligations 235 

Cha'p.  1.  Of  the  nature  and  division  of  obligations 'ib. 

Title  rV.  Of  conventional  obligations 236 

Chap.  1.  General  provisions ib. 

2.  Of  the  requisites  to  the  formation  of  a  valid  agreement 238 

Sect.  1.  Of  the  parties  to  a  contract,  and  of  their  capability  to 

contract 239 

2.  Of  the  consent  necessary  to  give  validity  to  a  contract. .  242 
§  1.  Of  the  nature  of  the  assent,  and  how  it  is  to  be  shown    ib. 

2.  What  defects  of  consent  will  invalidate  a  contract  . .  245 

3.  Of  error,  its  division  and  effects 246 

4.  Of  error  in  the  motive ib. 

5.  Of  error  as  to  the  person 247 

6.  Of  error  as  to  the  nature  and  olyect  of  the  contract.   248 

7.  Of  error  of  law 249 

8.  Of  tlie  nullity  resulting  from  fraud 250 

9.  Of  the  want  of  consent  arising  from  violence  or 

threats 251 

10,  Of  lesion   252 


TABLE.  XI 

PAGE 

§  11.  General  provisions  applicable  to  error,  violence  and 

fraud  in  contracts 255 

Sect.  3.  Of  the  object  and  matter  of  contracts ib. 

4.  Of  the  cause  or  consideration  of  contracts 256 

Chap.  3.  Of  the  eftect  of  obligations 257 

Sect.  1.  General  dispositions ib. 

2.  Of  the  obligation  of  giving 258 

3.  Of  the  obligations  to  do  and  not  to  do 261 

i.  Of  the  damages  resulting  from  the  inexecution  of  obliga- 
tions     262 

5.  Of  the  interpi'etation  of  agreements 265 

6.  Of  the  obligations  to  perform,  as  incidents  to  a  contract, 

all  that  is  required  by  equity,  usage  or  law 267 

7.  "What  contracts  shall  be  avoided  by  persons  not  parties  to 

them 268 

§  1.  Of  the  action  of  the  creditors  in  avoidance  of  con- 
tracts, and  its  incidents ib. 

2.  What  contracts  shall  be  avoided  by  that  action 269 

Chap.  4,  Of  the  different  kinds  of  obligations 272 

Sect.  1.  General  division  of  the  subject ib. 

2.  Of  strictly  personal,  heritable  and  real  obligations 273 

3.  Of  simple  and  conditional  obligations 276 

§  1.  General  provisions ib. 

2.  Of  the  suspensive  condition 278 

3.  Of  the  resolutory  condition ib. 

Sect.  4.  Of  limited  and  unlimited  obligations  as  to  the  time  of 

their  performance 279 

5,  Of  conjunctive  and  alternative  obligations 280 

6.  Of  several  obligations,  joint  obligations,  and  obligations 

in  solido 282 

§  1.  General  provisions , ib. 

2.  Of  the  rules  which  govern  several  obligations  and 

joint  obligations ib. 

3.  Of  the  rutes  which  govern  obligations  between  credi- 

tors in  solido 283 

4.  Of  the  rules  which  govern  obligations  with  respect 

to  debtors  in  solido ib. 

Sect.  7.  Of  the  obligations  divisible  and  indivisible 285 

§  1.  Of  the  effects  of  divisible  obligations 286 

2.  Of  the  effects  of  indivisible  obligations ib. 

Sect.  8.  Of  obligations  with  penal  clauses i1>- 

Chap.  5.  Of  the  manner  in  which  obligations  may  be  extinguished. . .  288 

Sect.  1.  Of  payment ib. 

§  1.  Of  payment  or  performance  in  general 289 

^         2.  Of  payment  with  subrogation 291 

8.  Of  the  imputation  of  payments 292 

4,  Of  tenders  of  payment  and  consignment 293 

5.  Of  the  cession  of  property ib. 

Sect.  2.  Of  novation 295 

3.  Of  the  remission  of  the  debt 297 

4.  Of  compensation  or  set-off^ ib. 

5.  Of  confusion 299 

6.  Of  the  loss  of  the  thing  due *&. 

7.  Of  the  action  of  nullity  or  of  rescission  of  agreements. . .  ib. 
Chap.  G.  Of  the  proof  of  obligations  and  of  that  of  payment 300 

Sect.  1.  Of  literal  proof 301 


xii  TABLE. 

PAGE 

§  1.  Of  authentic  acts 301 

2.  Of  acts  uuder  private  signature ib. 

8.  Of  copies  of  titles 302 

4.  Of  recognitive  and  confirmative  acts 304 

Sect.  2.  Of  testimonial  proof 305 

3.  Of  presumptions 306 

§  1.  Of  presumptions  established  by  law ib. 

2.  Of  presumptions  not  established  by  law 307 

Sect.  4.  Of  the  confession  of  the  party il. 

Title  V.  Of  quasi  contracts,  and  of  offences  and  quasi  offences 308 

Chap.  1.  Of  quasi  contracts ib, 

2.  Of  otleuces  and  quasi  offences 310 

Title  VI.  Of  the  marriage  contract,  &c 312 

Chap.  1.  General  dispositions «5. 

2.  Of  the  various  kinds  of  matrimonial  agreements 313 

Sect.  1.  Of  donations  made  in  consideration  of  marriage ib. 

2.  Of  dowry  or  marriage  portion ib. 

3.  Of  paraphernalia  or'extra-dotal  effects 318 

4.  Of  the  community  or  partnership  of  acquets  or  gains 319 

§  1.  Of  legal  comnniuity ib. 

2.  Of  the  modified  or' limited  community 322 

Sect.  5.  Of  the  clause  of  separation  of  property 323 

Chap.  3.  Of  the  separation  of  property  prayed  for  by  the  wife  during 

marriage a. 

Title  VII.  Of  sale 325 

Chap.  1.  Of  the  nature  and  form  of  the  contract  of  sale ib. 

2.  Of  persons  capable  of  buying  and  selling 326 

3.  Of  things  which  may  be  sold ib. 

4.  How  the  contract  of  sale  is  to  bo  performed 327 

5.  At  whose  risk  the  thing  sold  is  after  the  sale  is  completed. .  328 

6.  Of  the  obligations  of  the  seller .' . . ,  329 

Sect.  1.  Of  the  tradition  or  delivery  of  the  thing  sold ib. 

2.  Of  the  warranty  in  case  of  eviction  of  the  thing  sold  ...  332 

3.  Of  the  vices  of  the  thing  sold 334 

§  1.  Of  the  vices  of  the  thing  sold  which  give  occasion  to 

the  redhibitory  action ib. 

2.  Of  the  vices,  &c.,  which  occasion  a  reduction  of  the 

price 336 

3.  Of  the  vices,  &c.,  which  the  seller  has  concealed,  &c.  337 
Onap.  7.  Of  the  obligations  of  the  buyer ib. 

8.  Of  the  nullity  and  rescission  of  the  sale 339 

Sect.  1.  Of  the  power  or  right  of  redemption ib. 

2.  Of  the  rescission  of  sales  on  account  of  lesion 341 

Chap.  9.  Of  sales  at  auction,  or  public  sales 342 

10.  Of  judicial  sales 344 

Sect.  1.  Of  sales  on  seizure  or  execution ih. 

2.  Of  the  judicial  sale  of  the  property  of  successions 345 

Chap.  11,  Of  the  compulsory  sale  for  public  ut'ility ib. 

12.  Of  the  assignment  or  transfer  of  debts  or  other  incorporeal 

rigbts 346 

13.  Of  the  giving  in  payment 347 

Title  VIII.  Of  exchange 348 


xiii  TABLE.  xiil 

PAGB 

Title  IX.  Of  letting  and  hiring 349 

Chap.  1.  Of  the  nature  of  the  contract  of  hire,  and  of  its  several  kinds  ib. 

2.  Of  letting  out  things 350 

Sect.  1.  General  provisions ib. 

2.  Of  the  obhgations  and  rights  of  the  lessor 351 

3.  Of  the  obligations  and  rights  of  the  lessee 353 

4.  Of  the  dissolution  of  leases 355 

Chap.  3,  Of  the  letting  out  of  labor  or  industry 357 

Sect.  1.  Of  the  hiring  of  servants  and  Avorkmen ib. 

2,  Of  carriers  and  Avatermen ib. 

3.  Of  plots  for  building  and  other  vs^orks 358 

Title  X.  Of  rents  and  annuities 360 

Chap.  1.  Of  the  rent  of  lands ib. 

2.  Of  annuities 362 

Title  XL  Of  partnership 363 

Chap.  1.  General  provisions ib. 

2.  Kules  relating  to  the  diiferent  kinds  of  partnership 365 

Sect.  1.  Of  the  division  of  partnership ib. 

2.  Of  universal  partnership 366 

3.  Of  particular  partnership ib. 

4.  Of  partnership  in  commendam 36Y 

5.  Of  commercial  partnership 369 

Chap.  3.  Of  the  obligations  of  partners  towards  each  other,  and  to- 
wards third  persons ib. 

Sect.  1.  Of  the  obligations  of  partners  towards  each  other ib. 

2.  Of  their  obligations  towards  third  persons 372 

Chap.  4.  Of  the  different  manners  in  Avhich  partnerships  end ib. 

Title  XII.  Of  loan 374 

Chap.  1.  Of  the  loan  for  u  6  or  commodatum ib. 

Sect.  1.  Of  the  naturo  of  loan  for  use ib. 

2.  Of  the  engagements  of  the  borrower  for  use ib. 

3.  Of  the  obligations  of  the  lender  for  use 375 

Chap.  2.  Of  the  loan  for  consumption  or  mutuum ib. 

Sect.  1.  Of  the  nature  of  the  loan  for  consumption ib. 

2.  Of  the  obligations  of  the  lender  for  consumption 376 

3.  Of  the  engagements  of  the  borrower  for  consumption. . .  ib. 
Chap.  3.  Of  loan  on  interest 377 

Title  XIII.  Of  deposit  and  sequestration 378 

Chap.  1.  Of  deposit  in  general,  and  of  its  different  kinds ib. 

2.  Of  deposit  properly  so  called ib. 

Sect.  1.  Of  the  nature  and  essence  of  the  contract  of  deposit. . . .  ib. 

2.  Of  voluntary  deposit ib. 

3.  Of  the  obligations  of  the  depositary 379 

4.  Of  the  obligations  and  rights  of  the  depositor 381 

Chap.  3.  Of  the  necessary  deposit ib. 

4.  Of  sequestration 382 

Sect.  1.  Of  its  different  species ib. 

2,  Of  the  conventional  sequestration ii. 

3.  Of  the  judicial  sequestration  or  deposit 383 

Title  XIY.  Of  aleatory  contracts ib. 


xiv  TABLE. 

PAGE 

Title  XV.  Of  mandate  or  power  of  attorney 384 

Chap.  1.  Of  the  nature  and  form  of  mandates ii. 

2.  Of  the  obligations  of  the  attorney  in  fact 386 

3.  Of  the  mandatary  or  agent  for  both  parties 387 

4.  Of  the  obligations  of  the  principal,  &c 388 

5.  How  the  procuration  expires ib. 

Title  XVI.  Of  suretyship 389 

Chap.  1.  Of  the  nature  and  extent  of  suretyship ib. 

2.  Of  the  etFects  of  suretyship 390 

Sect.  1.  Of  its  effects  between  the  creditor  and  the  surety ib. 

2.  Of  its  effects  between  the  debtor  and  the  surety 391 

3.  Of  its  effects  between  the  sureties 392 

Chap.  3.  Of  the  extinction  of  suretyship ib. 

4.  Of  the  legal  and  judicial  sureties 393 

Title  XVII.  Of  transactions  and  compromise 394 

Title  XVIII.  Of  respite 395 

Title  XIX.  Of  arbitration 398 

Title  XX.  Of  pledge 401 

Chap.  1.  General  provisions ib. 

2.  Of  pawn 403 

3.  Of  antichresis 405 

Title  XXI.  Of  privileges 407 

Chap.  1.  General  provisions iJ, 

2.  Of  the  several  kinds  of  privileges ib. 

3.  Of  privileges  on  movables ib. 

Sect.  1.  Of  general  privileges  on  movables 408 

§  1.  Of  funeral  charges ib. 

2.  Of  law  charges H, 

3.  Of  expenses  during  the  last  sickness 409 

4.  Of  the  wages  of  servants ib. 

5.  Of  supplies  of  provisions 410 

G.  Of  the  privilege  of  clerks,  and  that  of  the  wife  for 

her  dowry ij. 

Sect.  2.  Of  the  privileges  on  particular  movables 411 

§  1.  Of  the  privilege  of  the  lessor i&, 

2.  Of  the  privilege  of  the  creditor  on  the  thing  pledged  412 

3.  Of  the  privilege  of  a  depositor H. 

4.  Of  the  expenses  incurred  for  the  preservation  of  a 

thing t5. 

6.  Of  the  i)rivilege  of  the  vendor  of  movable  effects  . . .  413 
6.  Of  the  j)rivilege  of  the  innkeeper  on  the  effects  of  the 

traveller ij. 

Sect.  3.  Of  the  privilege  on  ships  and  merchandise 414 

Chap.  4.  Of  privileges  on  immovables  and  slaves 417 

6.  Of  privileges  which  both  embrace  movables  and  immovables    ib. 

6.  Of  the  order  in  which  privileged  creditors  are  to  be  paid. . .  418 

7.  How  privileges  are  to  be  preserved  and  recorded 420 

8.  Of  the  manner  in  which  privileges  arc  extinguished 421 

Title  XXII.  Of  mortgages 422 

Chap.  1.  General  provisions ib. 

Sect.  1.  Of  conventional  mortgages 423 


XV  TABLE.  XV 

PAGE 

2.  Of  legal  mortgages 423 

3.  Of  judicial  mortgages 426 

4.  Of  the  rank  in  which  mortgages  stand  with  respect  to 

each  other 427 

Chap.  2.  Of  inscription  of  mortgages 429 

Sect.  1.  Of  the  mode  and  etfect  of  recording  mortgages ib. 

2.  Of  the  erasure  of  mortgages 433 

3.  Of  the  office  of  mortgages,  and  duties  of  recorders 435 

Chap.  3.  Of  the  etfect  of  mortgages  and  privileges 437 

Sect.  1.  Of  their  etiect  with  regard  to  the  debtor ib. 

2.  Of  their  eftect  against  third  possessors,  and  of  the  hy- 
pothecary action ib. 

Chap.  4.  How  mortgages  expire  or  are  extinguished 439 

Title  XXIII.  Of  occupancy,  possession,  and  prescription 440 

Chap.  1.  Of  occupancy ib- 

2.  Of  possession 442 

3.  Of  prescription 446 

Sect.  1.  General  provisions ib. 

2.  Of  the  prescription  by  which  property  is  acquired 447 

§  1.  Of  the  prescription  of  ten  and  twenty  years 448 

2.  Of  the  prescription  of  thirty  years 450 

3.  Of  the  prescription  of  movables 451 

4.  Of  the  causes  which  prevent  the  prescription  tending 

to  the  acquisition  of  property iJ). 

5.  Of  the  causes  which  interrupt  prescription 452 

6.  Of  the  causes  which  suspend  the  course  of  prescrip- 

tion   453 

Sect.  3.  Of  the  prescription  which  operates  a  release  from  debt. .  ib. 

§  1.  Of  the  prescription  of  one  year 454 

2.  Of  the  prescription  of  three  years 455 

3.  Of  the  prescription  of  five  years ib. 

4.  Of  the  prescription  of  ten  years 456 

5.  Of  the  prescription  of  thirty  years 457 

6.  Of  the  rules  relative  to  the  prescription  operating  a 

discharge  from  debts ib. 

Title  SXIV.  Of  the  signification  of  sundry  terms  of  law  employed  in  this 

Code 458 


CIVIL  CODE 


OF    THE 


STATE  OF  LOUISIANA. 


PRELIimARY  TITLE. 

OF  THE  GENERAL  DEFINITIONS  OF  RIGHTS  AND  THE 
PROMULGATION  OF  THE  LAWS. 


CHAPTER  I. 


OF    LAW. 


Article  1. — Law  is  a  solemn  expression  of  Legislative  will. 

12  L.  815 ;  S  N.  S.  6S0. 

Art.  2. — It  orders,  and  permits,  and  forbids  ;  it  announces  rewards 
and  punishes;  its  provisions  generally  relate  not  to  solitary  or  sin- 
gular cases,  but  to  what  passes  in  the  ordinary  course  of  affairs. 

Art.  3. — Customs  result  from  a  long  series  of  actions  constantly  re- 
peated, which  have  by  such  repetition,  and  by  uninterrupted  acquies- 
cence, acquired  the  force  of  a  tacit  and  common  consent. 

4  L.  211, 160  ;  7  L.  211,  524 ;  11  L.  357 ;  13  L.  516 ;  18  L.  380  ;  4  E.  381 ;  1  N.  S.  192. 


CHAPTER  IL 

OP   THE    PUBLICATION    OF    THE    LAWS. 

Art.  4. — As  laws  cannot  be  obligatory  without  being  known,  they 
must  be  promulgated  by  the  Governor  of  the  State. 

The  laws  shall  be  directed  to  the  authorities  intrusted  with  their 
execution  or  application,  and  to  such  other  persons  as  the  law  has  desig- 


2  OF  LAWS. 

nated  or  may  designate,  in  the  form  and  manner  which  is,  or  may  be 
prescribed,  to  ensure  their  most  extensive  publicity. 

The  Clerks  of  all  the  Courts  of  Justice  of  this  State,  shall  insert 
in  a  register,  to  be  kept  for  that  purpose,  the  titles  of  all  the  laws  which 
shall  have  been  directed  to  them,  together  with  the  day  on  which  they 
shall  have  received  them. 

5  N.  S.  482 ;  12  L.  815 ;  8  L.  485.    Sec  2  N.  S.  455. 

Art.  5. — The  laws  shall  be  executed  through  every  part  of  this 
State,  from  the  moment  they  shall  be  promulgated,  in  the  manner  pre- 
scribed. 

12  L.  31.\ 

Art.  6. — The,  promulgation  made  by  the  Governor,  shall  be  pre- 
sumed to  be  known  in  the  parish  which  is  the  seat  of  government,  three 
days  after  the  day  of  promulgation,  and  in  each  of  the  other  parishes, 
after  the  expiration  of  the  said  period,  with  the  addition  of  one  day  for 
every  four  leagues  between  the  place  in  which  the  promulgation  shall 
have  been  made,  and  the  place  where  the  Court  for  such  parish  is  held. 

Stat.  2\th  March,  1827,  p.  172.—^  I.  From  and  after  the  pas- 
sage of  this  act,  all  the  laws  enacted  by  the  Legis^iture  of  this  State 
shall  be  considered  promulgated  at  the  place  where  the  seat  of  govern- 
ment is  located,  the  day  after  the  publication  of  such  laws  in  the  gazette 
authorized  to  publish  the  law's  of  this  State,  and  in  all  other  parts  of 
this  State,  thirty  days  after  the  publication  in  said  gazette. 

^  2.  The  duties  now  imposed  on  the  Clerks  of  the  Courts  of  this 
State,  to  insert  in  a  register,  to  be  kept  for  that  purpose,  the  titles  of 
all  the  laws  which  shall  have  been  directed  to  them,  together  with  the 
day  on  which  they  shall  have  received  them,  shall  not  be  considered  as 
necessary  to  the  promulgation  in  such  laws. 

^  3.  The  Secretary  of  State  shall  be  bound  to  keep  a  register,  in 
which  he  shall  write  down  the  title  of  all  the  laws  passed  by  the  Legis- 
lature, together  with  the  date  of  the  day  when  they  sliall  have  been  re- 
spectively published  in  the  State  paper,  and  that  said  register  thus  kept, 
or  the  certificates  delivered  from  the  same  by  the  Secretary  of  State, 
under  his  official  signature  and  seal  of  the  State,  shall  be  full  evidence, 
both  before  the  courts  and  elsewhere,  of  the  publication  of  said  laws ; 
Provided,  Jiowcver,  that  whenever  the  promulgation  of  any  law  is  con- 
tested, tte  person  contesting  the  same  shall  be  held  to  prove  the  fact. 

12  L  815. 

Art.  7. — After  the  promulgation,  no  one  can  allege  ignorance  of 
the  law. 

CHAPTER  III. 

OF    THE    EFFECTS    OF    LAWS. 

Art.  8. — A  law  can  prescribe  only  for  the  future  :  it  can  have  no 
retrospective  operation,  nor  can  it  impair  the  obligation  of  contracts. 

Const.  1852,  art.  105. — No  ex  jwst  facto  law,  nor  any  law  impairing 
the  obligation  of  contracts,  shall  be  passed ;  nor  vested  rights  be  di- 
vested, unless  for  purposes  of  public  utility,  and  for  adequate  compen- 
eation  previously  made. 

See  ArL  1940 ;  8  N.  S.  175 ;  1  L.  843 ;  12  L.  355,  552 ;  16  L.  442 ;  2  A.  ISO ;  6  A.  600. 


3  OF  THE  LAWS.  '6 

Art.  9. — The  law  is  obligatory  upon  all  inhabitants  of  the  State  in- 
discriminately :  the  foreigner,  whilst  residing  t"here,  and  his  property 
within  its  limits,  are  subject  to  it. 

12  L.  855,  552 ;  16  L.  442 ;  1  A.  599  ;  Sec  C  N.  S.  15. 

Art.  10. — The  form  and  effect  of  public  and  private  written  instru- 
ments are  governed  by  the  laws  and  usages  of  the  places  where  they  are 
passed  or  executed. 

C.  p.  13 ;  6  N.  3.  6:^0 ;  7  N.  8. 110, 408 ;  S  N.  S.  21 ;  1  L.  24S ;  11  L.  Ifl,  470  ;  2  R.  259 ;  17  L.  4  ;  3  M 
66;  5S2  ;  8  M.  132;  2  N.  S.  93;  4  N.  8.  1 ;  5  N.  S.  5S7;  19  L.  216;  8  R.  407. 

But  the  effect  of  acts  passed  in  one  country,  to  have  effect  in  an 
other  country,  is  regulated  by  the  laws  of  the  country  where  they  are  to 
have  effect. 

6  L.  398 ;  2  R.  25S ;  2  A.  659  ;  3  A.  212. 

The  exception  made  in  the  second  paragraph  of  this  article  does  not 
hold,  when  a  citizen  of  another  State  of  the  Union,  or  a  citizen  or  sub- 
ject of  a  foreign  state  or  countrf,  disposes  by  will  or  testament,  or  by 
any  other  act  causa  mortis  made  out  of  this  State,  of  his  moveable  prop- 
erty situated  in  this  State,  if  at  the  time  of  making  said  will  or  testa- 
ment, or  any  other  act  causa  mortis,  and  at  the  time  of  his  death,  he 
resides  and  is  domiciliated  out  of  this  State. 

3  A.  579 ;  5  N.  S.  49,  569  ;  0  L.  39S ;  7  L.  138. 

Art.  11. — Individuals  cannot  by  their  conventions,  derogate  from 
the  force  of  laws  made  for  the  preservation  of  public  order  or  good 
morals. 

But  in  all  cases  in  which  it  is  not  expressly  or  impliedly  prohibited, 
they  can  renounce  what  the  law  has  established  in  tlieir  favor,  when  the 
renunciation  does  not  affect  the  rights  of  others,  and  it  is  not  contrary 
to  the  public  good. 

3  M.  583 ;  3  L.  512 ;  9  L.  590 ;  4  L.  123  ;  11  R.  302  ;  1  A.  297,  435 ;  3  A.  294,  323 ;  see  Art.  2170. 

Art.  12. — Whatever  is  done  in  contravention  of  a  prohibitory  law, 
is  void,  although  the  nullity  be  not  formally  directed. 

11  R.  302 ;  1  A.  205 ;  2  A.  492,  503,  667 ;  see  C  L.  231 ;  4  L.  51. 

CHAPTER  IV. 

OF    THE    ArPLICATION    AND    CONSTRUCTION    OF    LAWS. 

Art.  13. — Whe«  a  law  is  clear  and  free  from  all  ambiguity,  the  let- 
ter of  it  is  not  to  be  disregarded,  under  the  pretext  of  pursuing  its 
spirit. 

10  L.  261;  1  A.  424;  2  A.  695;  10  L.  97;  see  13  L.  497;  8  R.  402;  5  N.  S.  140. 

Art.  14. — The  words  of  a  law  are  generally  to  be  understood  in 
their  most  known  and  usual  signification,  without  attending  so  much  to 
the  niceties  of  grammar  rules  as  to  the  general  and  popular  use  of  the 
words. 

Art.  1.'5. — Terms  of  art  or  technical  terms  and  phrases,  are  to  be 
interpreted  according  to  their  received  meaning  and  acceptation  with 
the  learned  in  the  art,  trade  or  profession  to  which  they  refer. 

Art.  16. — Wliere  the  words  of  a  law  arc  dubious,  their  inclining 
may  be  sought  by  examining  the  context,  with  which  the  ambiguous 
words,  plirases  and  sentences  may  be  compared,  in  order  to  ascertain 
their  true  meaning. 


4  OF  THE  LAWS. 

Art.  17. — Laws  in  pari  materia^  or  upon  the  same  subject  matter, 
must  be  construed  with  a  reference  to  each  other  ;  what  is  clear  in  one 
statute  may  be  called  in  aid  to  explain  what  is  doubtful  in  another. 

5  A.  in ,  see  3  Pw.  4S ;  17  L.  407. 

Art.  18. — The  most  universal  and  effectual  way  of  discovering  the 
true  meaning  of  a  law,  when  its  expressions  are  dubious,  is  by  consid- 
ering the  reason  and  spirit  of  it,  or  the  cause  which  induced  the  Legis- 
lature to  enact  it. 

2  A.  100 ;  6  L.  ISO ;  5  N.  S.  140 ;  post,  art.  1941. 

Art.  19.  When,  to  prevent  fraud,  or  from  any  other  motives  of  pub- 
lic good,  the  law  declares  certain  acts  void,  its  provisions  are  not  to  be 
dispensed  with  on  the  ground  that  tl>e  particular  act  in  question  has 
been  proved  not  to  be  fraudulent,  or  not  to  be  contrary  to  the  public 
good. 

2  A.  7S2 ;  10  L.  264 ;  \VL.  19 ;  15  L.  394. 

Art.  20.  The  distinction  between  odious  laws  and  laws  entitled  to 
favor,  with  a  view  of  narrowing  or  extending  their  construction,  cannot 
be  made  by  those  whose  duty  it  is  to  interpret  them. 

Art.  21. — In  civil  matters,  where  there  is  no  express  law,  the  Judge 
is  bound  to  proceed  and  decide  according  to  equity.  To  decide  equit- 
ably, an  appeal  is  to  be  made  to  natural  law  and  reason,  or  received 
usages,  where  positive  law  is  silent. 

18  L.  895;  1  A.138;  2  A.  87. 


CHAPTER  V. 

OF    THE    REPEAL    OF    LAWS. 

Art.  22. — Laws  may  be  repealed  either  entirely  or  partially,  by 
other  laws. 

Art.  23. — The  appeal  is  either  express  or  implied : 

It  is  express,  when  it  is  literally  declared  by  a  subsequent  law ; 

It  is  implied,  when  the  new  law  contains  provisions  contrary  to,  or 
irreconcilable  with  those  of  the  former  law. 

The  repeal  of  a  repealing  law  does  not  revive  the  first  law,  unless 
it  be  so  particularly  expressed. 

Const.  1852,  Art.  116. — No  law  shall  be  revised  or  amended  by 
reference  to  its  title;  but  in  such  case,  the  act  revised,  or  section 
amended,  shall  be  re-enacted  and  published  at  length. 

8A,398:  5N.S.569;  7L.166:   scoGL.  130;  9L.5S5;  1  A.54;  2  A.  919;  5A.  121,395;  2L.S«; 
3  N.  S.  190;  10  L.  92 ;  1  N.  S.  73, 194 


BOOK  I. 

OF    PERSONS. 


TITLE   I. 

OF  TIIE  DISTINCTION  OF  PERSONS. 

Art.  24. — Laws  on  account  of  the  difference  of  sexes  have  estab- 
lished between  men  and  women  essential  differences  with  respect  to 
their  civil,  social  and  political  rights. 

Art.  25. — Men  are  capable  of  all  kinds  of  engagements  and  func- 
tions, unless  disqualified  by  reasons  and  causes  applying  to  particular 
individuals.  Women  cannot  be  appointed  to  any  public  oiEce,  nor  per- 
form any  civil  functions,  escept  those  which  the  law  specially  declares 
them  capable  of  exercising. 

Slat.  Uh  February,  1828,  p.  22.— Hereafter  it  shall  be  lawful  for 
widows  and  unmarried  women  of  age  to  bind  themselves  sureties  or  en- 
dorsers for  other  persons,  in  the  same  manner,  and  with  the  same  valid- 
ity, as  men  who  are  of  full  age,  any  law  to  the  contrary  notwithstand- 
ing. 

4  A.  588. 

Art.  26. — Birth  subjects  children  to  the  power  and  authority  of 
their  parents.  The  extent  of  this  subjection  on  the  one  hand,  and  au- 
thority on  the  other,  will  be  explained  in  its  proper  place. 

See  10  L.  92. 

Art.  27. — Children  are  Legitimate  or  Bastai-ds :  Legitimate  chil- 
dren  are  those  who  are  born  of  a  marriage  lawfully  contracted ;  and 
Bastards  are  such  as  are  born  of  an  illicit  union. 

Art.  28. — Children  born  dead  are  considered  as  if  they  had  never 
been  born  or  conceived.  ■ 

Art.  29. — Children  in  their  mother's  womb  are  considered,  in  what- 
ever relates  to  tliemselves,  as  if  they  were  already  born ;  thus  the  in- 
heritances which  devolve  to  them  before  their  birth,  and  which  may 
belong  to  thcin,  nre  kept  for  them,  and  curators  are  assigned  to  take 
care  of  their  estate  fir  tlieir  benefit. 

Art.  30. — Posthumous  children  arc  those  who  are  born  after  the 
death  of  their  father. 


6  OF  THE  DISTINCTION  OF  PERSONS. 

Art.  31. — Persons  of  insane  mind  are  those  who  do  not  enjoy  the 
exercise  and  use  of  reason,  after  they  have  arrived  at  the  age  at  which 
they  ought,  according  to  the  course  of  nature, -to  possess  it,  whether 
the  defect  results  from  nature  or  accident.  This  defect  disqualifies 
those  who  are  subject  to  it,  from  contracting  any  species  of  engage- 
ment, or  from  managing  their  own  estates,  which  are  for  this  reason 
placed  under  the  direction  of  a  Curator. 

Art.  32. — Persons  who,  by  reason  of  infirmities,  are  incapable  of 
managing  their  own  affairs,  have  their  persons  and  estates  placed  under 
the  direction  of  Curators. 

Art.  33. — Persons  laboring  under  the  disabilities  stated  in  the 
two  preceding  articles,  are  not,  on  this  account,  deprived  of  any  right 
or  advantages,  which,  notwithstanding  such  infirmity,  they  can  enjoy. 
They  retain  their  estates,  their  capacity  for  inheriting,  and  such  branch- 
es of  the  paternal  power  as  are  compatible  with  their  situation. 

Art.  34. — Age  forms  a  distinction  between  those  who  have,  and 
those  who  have  not  sufficient  reason  and  experience  to  govern  them- 
selves and  to  be  masters  of  their  own  conduct.  But  as  nature  does  not 
always  impart  the  same  maturity  and  strength  of  judgment  at  the  same 
age,  the  law  determines  the  period  at  which  persons  are  sufficiently  ad- 
vanced in  life  to  be  capable  of  contracting  marriage,  and  of  forming 
other  engagements. 

Art.  35. — A  slave  is  one  who  is  in  the  power  of  a  master  to  whom 
he  belongs.  The  master  may  sell  him,  dispose  of  his  person,  his  indus- 
try and  his  labor :  he  can  do  nothing,  possess  nothing,  nor  acquire  any 
thing  but  what  must  belong  to  his  master. 

Art.  36. — Manumitted  persons  are  those  who  having  been  once 
slaves,  are  legally  made  free. 

Art.  37. — Slaves  for  a  time  or  statu  liberie  are  those  who  have  ac- 
quired the  right  of  being  free  at  a  time  to  come,  or  on  a  condition 
which  is  not  fulfilled,  or  in  a  certain  event  which  has  not  happened,  but 
who,  in  the  mean  time,  remain  in  a  state  of  slavery. 

1  A.  32  ;  9  L.  492. 

Art.  38. — Freemen  are  those  who  have  preserved  their  natural  lib- 
erty, that  is  to  say,  who  have  the  right  of  doing  whatever  is  not  forbid- 
den by  law. 

Art.  39. — Emancipation  and  the  other  ways  which  free  the  son  or 
daughter  of  a  family  from  the  father's  authority,  regard  only  the  effects 
which  the  civil  law  gives  to  the  paternal  power,  but  changes  in  no  re- 
spect those  that  are  derived  from  natural  right. 

Art.  40. — Males  who  have  not  attained  the  age  of  fourteen  years 
complete,  and  females  who  are  under  twelve,  are  under  the  age  of  pu- 
berty ;  and  sons  who  have  attained  fourteen  years  complete,  and  daugh- 
ters the  age  of  twelve  complete,  are  distinguished  by  the  name  of 
adults. 

Art.  41. — Minors  are  those  of  both  sexes,  who  have  not  yet  at- 
tained the  age  of  one  and  twenty  years  complete ;  and  they  remain 
under  the  direction  of  tutors  or  curators  till  that  age.  When  they 
have  arrived  at  it,  they  then  are  said  to  be  of  full  age. 

See  10  L.  92. 


OF  DOMICIL. 


TITLE  11. 

OF  DOMICIL  AND  THE  MANNER  OF  CHANGING  THE  SAME. 

Art.  42. — The  domicil  of  each  citizen  is  in  the  parish  wherein  his 
principal  establishment  is  selected. 

The  principal  establishment  is  that  in  which  he  makes  his  habitual 
residence  ;  if  he  resides  alternately  in  several  places,  and  nearly  as 
much  in  one  as  in  another,  and  has  not  declared  his  intention  in  the 
manner  hereafter  prescribed,  any  one  of  the  said  places  where  he  re- 
sides may  be  considered  as  his  principal  establishment,  at  the  option  of 
the  persons  whose  interests  are  thereby  affected. 

n  h.  1T5;  12  L.  190;  14  L.  169;  18  L.  557;  11  R.  154;  2  A.  946;  See  2  L.  29;  16  L.  813. 

Aet.  43. — A  change  of  domicil  is  produced  by  the  act  of  residino; 
in  another  parish,  combined  with  the  intention  of  making  one's  principal 
establishment  there. 

C.  P.  1S9, 166, 167, 16S,  201 ;  8  N.  S.  247 ;  S  L.  213 ;  12  L.  190, 169 ;  6  N.  S.  467  ;  See  2  L.  29  ;  9  M.  4S9. 

Art.  44. — This  intention  is  proved  by  an  express  declaration  of  it 
before  the  judges  of  the  parishes,  from  which  and  to  Avhich  he  shall  hi- 
tend  to  remove. 

This  declaration  is  made  in  writing,  is  signed  by  the  party  making 
it,  and  registered  by  the  judge. 

2  R.  449  ;  See  6  N.  S.  4G7;  4  N.  S.  51 ;  6  N.  S.  247. 

Art.  45. — In  case  this  declaration  is  not  made,  the  proof  of  this 
intention  shall  depend  upon  circumstances. 

6  N.  S.  247 ;  8  L.  213  :  13  L.  293 ;  2  R.  449. 

Art.  46. — A  citizen  accepting  a  temporary  and  precarious  office,  of 
one  from  which  he  may  be  removed  at  pleasure,  retains  his  ancient  dom- 
icil, if  he  has  not  evinced  a  contrary  intention. 

2  R.  466. 

Art.  47. — An  acceptance  of  an  office  conferred  for  life  or  during 
good  behavior,  implies  an  immediate  transfer  of  the  domicil  of  the 
officer  to  the  parish  in  which  he  is  required  to  exercise  his  functions. 

But  public  officers,  who  perform  duties  throughout  tlie  State  or  in 
a  district  composed  of  several  parishes,  preserve  the  domicil  they  had 
before  their  appointment,  unless  they  manifest  a  contrary  intention. 

Art.  48. — A  married  woman  has  no  other  domicil  than  tliat  of  her 
husband  :  the  domicil  of  a  minor  not  emancipated  is  tliat  of  liis  father, 
mother,  or  tutor;  a  person  of  full  age,  under  interdiction,  has  his  dom- 
icil with  his  curator. 

2  L.  29;  9  L.  567 ;  2  R.  41S,  427 ;  1  A.  815. 

Art.  49. — Persons  who  have  attained  tlie  age  of  majority,  and  who 
labor  constantly  witli,  or  serve  others,  have  the  same  domicil  as  those 
with  whom  they  labor  or  serve,  provided  they  reside  with  them. 


8  OF  ABSENTEES. 

TITLE  III. 

OF    ABSENTEES. 
CHAPTEK  I.  > 

OF    THE    CUrLATORSHIP    OF    ABSENTEES. 

Art.  50. — When  a  person  possessed  of  either  movable  or  immov- 
able property  within  this  State,  shall  be  absent,  or  shall  reside  out  of 
the  State,  without  having  appointed  somebody  to  take  care  of  his  es- 
tate, or  when  the  person  thus  appointed  dies,  or  is  either  unable  or  un- 
willing to  continue  to  administer  that  estate,  then  and  in  that  case,  the 
judge  of  the  place  where  that  estate  is  situated,  shall  appoint  a  curator 
to  administer  the  same. 

15  L.  81. 

Art.  51. — In  the  appointment  of  this  curator  the  judge  shall  pre- 
fer the  wife  of  the  absentee  to  his  presumptive  heirs,  the  presumptive 
heirs  to  the  other  relations,  the  gelations  to  strangers,  and  creditors  to 
those  who  are  not  otherwise  interested,  provided  however  that  such 
persons  be  possessed  of  the  necessary  qualifieations. 

4  M.  370 ;  5  M.  89. 

Art.  52. — The  Curator  appointed  to  the  absentee  shall  take  an 
oath  well  and  faithfully  to  fulfil  the  duties  of  his  administration  and 
to  give  an  account  of  it  to  those  who  have  a  right  to  demand  it. 

It  is  further  his  duty  to  cause  a  good  aud  faithful  inventory,  witk 
an  appraisement  of  the  property  intrusted  to  his  keeping,  to  be  made 
by  the  judge  or  by  any  notary  public  duly  authorized  to  that  eifect  by 
the  judge,  tind  to  give  a  good  and  sufficient  security  to  the  amount  of 
this  inventory  for  his  administration. 

2  A.  1010. 

Art.  53. — The  curator  of  the  absentee  has  no  other  power  than 
that  of  administering  the  estate  of  the  absentee,  without  having  a  right 
to  alienate  or  mortgage  the  same,  under  any  pretence  whatsoever. 

He  is  m/3reover  bound,  with  respect  to  this  administration,  by  the 
same  obligations,  responsibility  and  mortgage  by  which  tutors  are 
bound,  and  he  has  a  right  to  the  same  annual  compensation  for  his 
services. 

Stat.  'I'^th  March,  1840,  p.  124.—^  6.  Whenever  the  Curator  or 
Attorney  in  fact  of  an  absentee  shall  apply  to  the  Court  of  Probates, 
by  a  petition  made  under  oath  to  the  best  of  his  knowledge  and  belief 
setting  forth  that  the  absentee  has  not  been  heard  from  for  the  space 
of  ten  years,  and  that  he  has  no  heirs  known  to  him  residing  in  the 
State ;  or  when  such  facts  relative  to  any  absentee  shall  be  known  to 
the  Judge  of  the  Court  of  Probates,  or  due  and  satisfactory  proofs  of 
the  facts  aforesaid  shall  be  made  to  him  by  any  other  person  than  the 
Curator  or  Attorney  in  fact ;  it  shall  be  his  duty  in  all  such  cases  to 
order  the  sale  of  the  property  of  such  absentee  in  the  same  manner, 
on  the  same  conditions,  and  the  funds  to  be  paid  into  the  State  Treas- 


9  OF  ABSENTEES.  9 

ury  in  the  same  manner  as  in  cases  of  vacant  successions ;  provided, 
that  in  every  case  when  a  Curator  of  the  absentee  shall  have  been  ap- 
pointed and  shall  remain  in  the  performance  of  his  duty,  it  shall  not  be 
necessary  to  appoint  a  Curator,  but  the  Curator  of  the  absentee  shall 
act  as  such. 

5  L.  26. 

Art.  54. — bo  long  as  this  curatorship  continues,  all  suits  in  which 
the  absentee  is  interested,  shall  be  prosecuted  by  or  against  the  cu- 
rator. 

Art.  55. — The  curatorship  of  the  absentee  ends  : 

1.  When  the  absentee,  or  person  residing  out  of  the  State,  appoints 
an  attorney  in  fact  for  the  administration  of  his  estate,  whether  it  bo 
the  person  who  was  appointed  curator  or  any  other  person  ; 

2.  When  after  a  certain  time,  without  hearing  of  the  absentee,  his 
heirs  cause  themselves  to  be  put  provisionally  in  possession   of  his  es- 

'  tate,  in  conformity  with  the  law. 

Art.  56. — The  curator  of  the  absentee  is  bound  to  give  an  account 
of  his  administration,  as  soon  as  it  ends,  either  by  the  appointment  of 
an  attorney  in  fact  by  the  absentee,  or  the  putting  into  provisional  pos- 
session of  his  heirs. 

Art.  57. — If  a  suit  be  instituted  against  an  absentee  who  has  no 
known  agent  in  the  State,  or  for  tlic  administration  of  whose  property 
no  curator  has  been  appointed,  the  judge,  before  whom  the  suit  is  pend- 
ing, shall  appoint  a  curator  ad  hoc  to  defend  the  absentee  in  the  suit. 

4  L.  257 ;  13  L.  2S2  ;  15  L.  871 ;  2  A.  562,  916, 1010 ;  3  N.  S.  177 ;  6  N.  S.  15 ;  Soe  5  L.  43 ;  9  L.  72 ;  10 
L.  14 ;  12  L.  280 ;  14  L.  415 ;  15  L.  81. 


CHAPTER  II. 

OF    THE    TUTTING    INTO    rROVISIONAL     POSSESSION     THE     HEIRS    OF    AN    AB- 
SENTEE. 

Art.  58. — When  a  person  shall  not  have  appeared  at  the  place  of 
his  domicil  or  habitual  residence,  and  when  such  person  shall  not  have 
been  heard  of  for  five  years,  his  presumptive  heirs  may,  by  producing 
proof  of  the  fact,  cause  themselves  to  be  put  by  the  competent  judge 
into  provisional  possession  of  the  estate  which  belonged  to  the  absentee 
at  the  time  of  his  departure,  or  at  the  time  he  was  heard  of  last,  on 
condition  of  their  giving  security  for  their  administration. 

11  M.  44.3. 

Art.  59. — If  the  absentee  has  left  a  power  of  attorney,  his  pre- 
sumptive heirs  cannot  cause  themselves  to  be  put  into  provisional  pos- 
session, until  seven  years  shall  have  elapsed  since  the  last  intelligence 
of  him  has  been  received. 

Art.  60. — It  is  the  same  if  the  power  of  attorney  shall  have  ex- 
pired, and  in  this  case  the  property  of  the  absentee  shall  be  adminis- 
tered as  is  ordained  in  the  first  chapter  of  the  present  title. 

Art.  61. — Tlie  putting  into  provisional  possession  can  be  ordered 
previous  to  the  expiration  of  the  terms  before  mentioned,  when  it  shall 
be  shown  that  there  are  strong  presumptions  that  the  person  absent 
las  perished. 


10  OF  ABSENTEES. 

Art.  62. — The  Judge  in  pronouncing  upon  this  demand  shall  take 
into  consideration  the  motives  of  the  absence  and  the  reasons  which 
may  have  prevented  the  absentee  from  being  heard  of. 

Art.  63.  "When  the  presumptive  heirs  shall  have  been  put  into  pro- 
visional possession  of  the  estate  of  the  absentee,  the  will  made  by  him, 
if  there  be  any  such  will,  may  be  presented  or  opened  at  the  request 
of  the  person  interested,  and  the  testamentary  heirs,  the  legatees,  do- 
nees, as  well  as  those  who  have  any  rights  to  or  claims  upon  his  prop- 
erty, wtiich  depend  upon  the  death  of  the  said  absentee,  may  provision- 
ally prosecute  their  claims  and  exercise  their  rights  on  the  condition  of 
their  giving  security. 

Art.  64. — If  the  testament  contain  an  institution  of  an  universal 
heir,  he  shall  be  preferred  to  the  presumptive  heirs,  unless  they  are 
forced  heirs,  and  shall  be  put  into  provisional  possession  of  the  estate 
of  the  absentee,  but  on  giving  security  for  his  administration. 

Art.  65. — The  husband  or  wife  of  the  absentee,  who  is  not  sepa- 
rated in  estate  from  him  or  her,  and  who  wishes  to  continue  to  enjoy 
the  benefit  of  the  community  or  partnership  of  matrimonial  gains, 
which  existed  between  them,  may  prevent  the  provisional  possession  or 
exercise  of  all  the  rights  which  may  depend  upon  the  death  of  the  ab- 
sentee, and  claim  and  preserve  for  himself  or  herself  in  preference  to 
any  other  person,  the  administration  of  the  estate  of  his  or  her  absent 
husband  or  wife. 

If  on  the  contrary  the  husband  or  wife  of  the  absentee  chooses 
rather  to  have  the  community  dissolved,  he  or  she  may  exercise  and 
claim  all  his  or  her  rights,  both  legal  and  conventional,  on  his  or  her 
giving  security  for  such  things  as  may  be  liable  to  be  restored. 

The  wife  who  elects  to  have  the  community  continued,  has,  notwith- 
standing, the  right  of  renouncing  it  afterwards. 

Art.  66. — Provisional  possession  is  but  a  deposit,  which  invests 
those  who  have  obtained  it,  with  the  administration  of  the  estate  of 
the  absentee,  and  for  which  they  remain  accountable  to  him,  in  case  he 
reappears  or  is  heard  of  again. 

The  security  therefore  to  be  given  by  those  who  are  put  into  provis- 
ional 230ssession,  ought  not  to  exceed  the  probable  amount  of  the  injury 
which  their  mal-administration  can  cause. 

Art.  67. — It  shall  be  the  duty  of  such  as  shall  have  obtained  pro- 
visional possession,  or  of  the  husband  or  wife  who  shall  have  been  con- 
tinued in  the  administration  of  the  community,  to  cause  an  inventory 
of  the  movables,  slaves  and  credits  of  the  absentee,  to  be  made  by  the 
Judge  or  by  any  notary  public  duly  authorized  to  that  effect  by  the 
Judge. 

The  Judge  shall  order,  if  necessary,  that  the  whole  or  part  of  the 
movables  be  sold,  and  in  case  of  sale,  both  the  amount  of  the  sale  and 
the  profits  which  may  have  accrued,  shall  be  either  laid  out  in  the  pur- 
chase of  real  property,  or  placed  at  interest  in  a  safe  manner. 

S«e  amendment  to  Art.  53. 

Art.  68. — Those  who  shall  have  obtained  either  the  provisional 
possession  or  legal  administi-ation,  may  petition  for  their  own  security 
for  the  appointment,  by  the  Judge,  of  two  persons  well  acquainted  with 
such  affairs  and  sworn  by  the  Judge,  for  the  purpose  of  examining  the 


1 1  OF  ABSENTEES.  \  \ 

immovables  of  tlie  absentee,  and  reporting  their  condition  ;  and  tlie 
report  of  such  persons  shall  be  afterwards  approved  by  the  Judge,  and 
the  expenses  attending  the  same  shall  be  paid  out  of  the  estate  of  the 
absentee. 

Art.  69. — If  the  absentee  shall  reappear  after  the  putting  into 
provisional  possession  of  his  heirs,  they  shall  be  bound  to  return  him 
the  annual  revenues  of  his  property  in  the  following  proportions  : 

Of  the  first  five  years,  two-thirds  ; 

Of  the  five  years  ensuing,  one-half; 

Of  the  next  five  years,  one-third. 

After  thirty  years  absence,  the  whole  of  the  revenue  shall  belong 
to  those  who  shall  have  been  put  into  provisional  possession. 

Art.  70. — Those  persons  who  enjoy  only  in  virtue  of  .the  provis- 
ional possession,  can  neither  alienate  nor  mortgage  the  immovables 
and  slaves  of  the  absentee. 

But  if  it  should  be  found  necessary  to  sell  any  of  the  slaves,  the 
sale  of  them  may  be  ordered  by  the  Judge,  who  must  recjuire  that  the 
proceeds  be  placed  at  interest  in  a  safe  manner,  or  invested  in  immov- 
ables and  slaves. 

Art.  71. — If  the  absence  has  lasted  thirty  years  since  the  provis- 
ional possession,  or  since  the  time  when  the  husband  or  wife  who  held 
their  estate  in  common  shall  have  taken  the  administration  of  the  es- 
tate of  the  absentee,  or  if  one  hundred  years  have  elapsed  since  the 
birth  of  the  absentee,  then  the  sureties  shall  be  discharged,  and  all 
such  as  may  have  rights,  may  petition  for  the  partition  of  the  estate 
of  the  absentee,  and  cause  themselves  to  be  put  in  absolute  possession 
by  the  Judge. 

Art.  72. — The  succession  of  the  absentee  shall  be  opened  from  the 
day  of  his  or  her  death  duly  ascertained,  for  the  benefit  of  such  heirs 
as  were  capable  of  inheriting  his  estate  at  the  time ;  and  those  who 
shall  have  enjoyed  the  estate  of  the  absentee,  shall  be  bound  to  restore 
the  same,  with  the  exception  of  the  profits  assigned  them  by  the  j>ro- 
visions  of  the  above  sixty-ninth  article. 

Art.  73. — If  the  absentee  should  reappear,  or  if  his  existence 
should  be  proved  during  the  provisional  possession,  then  the  efi"ect  of 
the  judgment  which  shall  have  ordered  this  provisional  possession, 
shall  cease,  without  however  affecting  the  validity  of  any  such  conserv- 
atory measures  prescribed  in  the  first  chapter  of  this  title  as  may  have 
been  taken  for  the  administration  of  the  estate  of  the  absentee. 

Art.  74. — If  the  absentee  sliould  reappear,  or  if  his  existence 
should  be  pi'oved,  even  after  the  putting  into  absolute  possession,  he 
shall  recover  his  estate,  sucli  as  it  may  happen  to  be,  the  price  of  such 
part  of  it  as  has  been  sold,  or  such  property  as  has  been  bought  with 
the  proceeds  of  his  estate  which  may  have  been  sold. 

Art.  75. — The  children,  or  direct  descending  heirs  of  the  absentee, 
may  likewise,  within  thirty  years  to  be  computed  from  the  day  of  the 
absolute  possession,  petition  for  the  restitution  of  his  estate,  according 
to  the  preceding  article. 

Art.  76. — After  judgment  or  during  provisional  possession  or  legal 
administration,  no  person  who  may  have  rights  to  exercise  against  the 


12  OF  ABSENTEES. 

absentee,  can  prosecute  such  rights,  except  against  those  who  have  been 
put  into  provisional  possession  of  the  estate,  or  who  shall  have  been  le- 
gally appointed  administrators  of  the  same. 


.      CHAPTER  III. 

OF    THE    EFFECTS    OF    ABSENCE    UPON    THE    EVENTUAL    RIGHTS  WHICH    MAY 
BELONG    TO    THE    ABSENTEE. 

Art.  77. — Whoever  shall  claim  a  right  accruing  to  a  person  whose 
existence  is  not  known,  shall  be  bound  to  prove  that  such  person  exist- 
ed at  the  time  when  the  right  in  question  accrued,  and  until  this  be 
proved,  his  demand  shall  not  be  admitted. 

Art.  78. — In  case  a  succession  shall  be  opened  in  favor  of  a  person 
whose  existence  is  not  known,  such  inheritance  shall  devolve  exclusive- 
ly on  those  who  would  have  had  a  joint  right  with  him  to  the  estate,  or 
on  those  on  whom  the  inheritance  should  have  devolved  if  such  person 
had  not  existed. 

3L.  3T4;  6  L.  653. 

Art.  79. — The  provisions  of  the  two  preceding  articles  shall  not 
affect  the  right  of  claiming  the  inheritance  and  any  other  rights  which 
the  absentee  or  his  representatives  or  assigns  may  have,  which  shall  be 
extinguished  only  by  the  lapse  of  time  which  is  established  for  pre- 
scription. 

Art.  80. — As  long  as  the  absentee  shall  not  appear,  or  a  suit  shall 
not  be  brought  in  his  name,  those  who  shall  have  been  put  in  possession 
of  the  inheritance,  shall  have  a  right  to  the  proceeds  by  them  received 
ho7id  fide. 

CHAPTER  IV. 

OF    THE    EFFECTS    OF    ABSENCE    RESPECTING    MARRIAGE. 

Art.  81. — Ten  years  of  absence,  without  any  news  of  the  absentee, 
is  a  sufficient  cause  for  the  husband  or  wife  of  such  absentee  to  con- 
tract another  marriage,  after  having  been  authorized  to  do  so  by  the 
judge,  on  due  proof  that  such  absence  without  any  news  continued  the 
time  required  as  aforesaid. 

And  if  after  the  said  marriage  the  husband  or  wife  who  was  absent, 
happens  to  return,  he  or  she  shall  be  free  of  his  or  her  first  contract, 
and  at  liberty  to  contract  another  marriage,  and  the  marriage  entered 
into  by  the  husband  or  wife  during  and  on  account  of  the  absence,  shall 
remain  firm  and  valid. 

CHAPTER  V. 

OF    THE     CARE    OF    MINOR     CHILDREN     WHERE     THE     FATHER     HAS     DISAP- 
PEARED. 

Art.  82. — If  a  father  has  disappeared,  leaving  minor  children  born 
during  his  marriage,  the  mother  shall  take  care  of  them  and  shall  ex- 


13  OF  HUSBAND  AND  WIFE. 


13 


ercise  all  the  rights  of  her  husband  with  respect  to  their  education  and 
the  administration  of  their  estate. 

Art.  83. — But  if  the  mother  contracts  a  second  marriage,  she  can- 
not preserve  this  superintendence  of  her  children,  but  with  the  consent 
of  a  meeting  of  the  family,  composed  of  relations  or  friends  of  the 
father. 

Art.  84. — If  this  superintendence  is  refused  to  her,  a  provisional 
tutor  shall  be  appointed  for  the  children,  in  the  manner  prescribed  in 
the  title  of  minors^  and  of  tutorship  and  curatorship. 

Art.  85.— There  shall  be  appointed  for  the  children  a  provisional 
tutor  ni  the  manner  herein  directed,  if  at  the  time  of  the  disappear- 
ance of  the  father,  the  mother  should  be  dead,  or  if  she  should  die  be- 
fore their  attaining  the  age  of  majority. 

Art.  86.— The  same  thing  shdl  take  place  if  the  husband  or  wife 
who  have  disappeared,  have  left  minor  children  born  of  a  former  mar 
riao-e. 


TITLE  IV. 

OF   HUSBAND    AND    WIFE. 


OHAPTEE  I. 

OP       MARRIAGE 

_    Art.  87. — The  law  considers  marriage  in  no  other  view  than  as  a 
civil  contract. 

Art.  88. — The  law  prescribes  : 

1.  The  manner  of  contracting  and  celebrating  marriages  ; 

2.  The  legal  eflPects  and  consequences  of  marriage  ; 

3.  The  manner  in  which  marriages  may  be  dissolved. 

Art.  89.— Such  marriages  only  are  recognized  by  law  as  arc 
contracted  and  solemnized  according  to  the  rules  which  it  pre- 
scribes. ^ 

Art.  90.— Marriage  is  a  contract  intended  in  its  origin  to  endure 
until  the  death  of  one  of  the  contracting  parties;  yet  this  contract  may 
be  dissolved  before  the  decease  of  either  of  the  married  persons,  for 
causes  determined  by  law. 

CHAPTER  II. 

HOW  MARRIAGES  MAY  BE  CONTRACTED  OR  MADE. 

Art.  91.— As  the  law  considers  marriage  in  no  other  view  than  that 
of  a  civil  contract.  It  sanctions  all  those  marriages,  where  the  parties 
at  the  time  of  making  them  were  :  i-  ^i-ic-, 


14  OF  HUSBAND  AND  WIFE. 

1.  Willing  to  contract, 

2.  Able  to  contract, 

3.  Did  contract  pursuant  to  the  forms  and  solemnities  prescribed 

by  law. 

Art.  92. — No  marriage  is  valid  to  which  the  parties  have  not  freely 
consented. 

Consent  is  not  free  : 

1.  When  given  to  a  ravisher.  unless  it  has  been  given  by  the  party 
ravished,  after  she  has  been  restored  to  the  enjoyment  of  liberty ; 

2.  When  it  is  extorted  by  violence ; 

3.  When  there  is  a  mistake  respecting  the  person,  whom  one  of  the 
parties  intended  to  marry. 

Art.  93. — Ministers  of  the  gospel  and  magistrates,  intrusted  with 
the  power  of  celebrating  marriages,  are  prohibited  to  marry  any  male 
under  the  age  of  fourteen  years,  and  any  female  under  the  age  of  twelve ; 
and  if  any  of  them  are  convicted  of  having  married  such  persons,  he 
shall  be  removed  from  his  office,  if  a  magistrate,  or  deprived  forever  of 
the  right  of  celebrating  marriages,  if  a  minister  of  the  gospel. 

Art.  94. — Persons  legally  married  are,  until  a  dissolution  of  mar- 
riage, incapable  of  contracting  another,  under  the  penalties  established 
by  the  laws  of  this  State. 

Art.  95. — Free  persons  and  slaves  are  incapable  of  contracting 
marriage  together ;  the  celebration  of  such  marriages  is  forbidden,  and 
the  marriage  is  void ;  there  is  the  same  incapacity  and  the  same  nullity 
with  respect  to  marriages  contracted  by  free  white  persons  with  free 
people  of  color. 

Art.  96. — Marriage  between  persons  related  to  each  other  in  the 
direct  ascending  or  descending  line  is  prohibited.  This  prohibition  is 
not  confined  to  legitimate  children,  it.  extends  also  to  children  born  out 
of  marriage. 

Art.  97. — Among  collateral  relations  marriage  is  prohibited  be- 
tween brother  and  sister,  whether  of  the  whole  or  of  the  half  blood, 
whether  legitimate  or  illegitimate,  and  also  between  the  uncle  and  the 
niece,  the  aunt  and  the  nephew. 

Art.  98. — All  other  impediments  on  account  of  relationship  or  af- 
finity are  abolished. 

Art.  99. — The  minor  of  either  sex,  who  has  attained  the  compe- 
tent age  to  marry,  must  have  received  the  consent  of  his  father  and 
mother,  or  of  the  survivor  of  them;  and  if  they  are  both  dead,  the 
consent  of  his  curator. 

He  must  furnish  proof  of  this  consent  to  the  judge  to  whom  he  ap- 
plies for  permission  to  marry. 

Art.  100. — Those  who  have  attained  the  age  of  majority,  on  their 
demanding  permission  to  marry,  must  furnish  the  judge  proof  of  their 
having  attained  that  age. 


15  OF  HUSBAND  AND  WIFE.  .  15 

CHAPTER  III. 

OF  THE  CELEBRATION  OF  MARRIAGES. 

Art.  101. — Any  priest,  or  minister  of  a  religious  sect,  domiciliated 
in  any  one  of  the  parishes  of  this  State,  shall  have  the  right  of  cele- 
brating mai'riages  therein. 

Stat.  3(rZ  February.,  1826,  p.  26,  ^  1. — If  there  be  no  priest  or  min- 
ister of  a  religious  sect  domiciliated  in  any  one  of  the  parishes  of  this 
State,  the  Judge  of  that  parish,  if  required  by  either  of  the  parties,  is 
authorized  to  send  to  any  priest  or  minister  residing  in  a  neighboring 
parish,  a  commission  to  come  and  cekbrate  marriages  in  the  parish  in 
which  said  Judge  has  his  jurisdiction. 

^  2.  All  acts  or  parts  of  acts,  contrary  to  the  provisions  of  this  act, 
are  hereby  repealed. 

Stat.  5th  March,  1842,  p.  204,  !^  1. — From  and  after  the  passage 
of  this  act  the  articles  of  the  Civil  Code,  101,  102,  shall  be  so  con- 
strued that  any  priest  or  minister  of  a  religious  sect,  domiciliated  within 
the  State  of  Louisiana,  shall  have  the  right  of  celebrating  marriages  in 
any  one  of  the  parishes  of  this  State,  and  it  shall  no  longer  be  required 
that  the  said  priest  or  minister  of  a  religious  sect  shall  reside  in  the 
parish  where  ho  celebrates  or  performs  the  marriage  ceremony. 

Stat.  1th  March,  1850,  p.  42,  ^  1. — From  and  after  the  passage  of 
this  act,  the  regularly  commissioned  notaries  of  this  State,  in  and  for 
the  parish  of  West  Feliciana,  during  their  term  of  oifice,  shall  be  em- 
powered to  perform  within  said  parish  the  ceremony  of  marriage,  under 
the  formalities  required  by  law,  and  that  said  ceremony  when  performed 
by  them,  shall  have  the  same  legal  cflfect  as  when  performed  by  any 
other  person  or  persons  authorized  by  existing  laws  to  perform  the 
same. 

Art.  102. — The  judge  of  the  parish  may  authorize  one  or  more 
justices  of  the  peace,  within  his  jurisdiction,  to  celebrate  marriages. 

See  amendments  to  Art,  101. 

Art.  103. — No  marriage  can  be  celebrated  without  the  special  li- 
cense of  the  parish  judge,  directed  to  the  priest,  minister  or  justice  of 
the  peace,  who  is  to  celebrate  it. 

Art.  104. — Before  granting  license  to  marry,  the  parish  judge 
shall  give  notice  thereof  by  advertisement  placed  at  the  door  of  the 
church  or  of  the  court  house ;  and  fifteen  days  after,  if  there  be  no  op- 
position, he  shall  grant  the  license. 

He  can  dispense  with  this  publication,  in  cases  which  he  shall  deem 
urgent  and  important. 

Art.  105. — Before  granting  the  license,  the  judge  shall  require  of 
the  intended  husband  a  bond,  with  a  surety  in  <i  sum  proportioned  to 
his  means,  with  condition  that  there  exists  no  legal  impediment  to  the 
marriage.     The  duration  of  the  security  is  fixed  to  two  years. 

Art.  106. — Licenses  for  marriage  can  only  be  granted  by  the  judge 
of  the  parish  in  which  one  at  least  of  the  parties  is  domiciliated. 

Art.  107. — The  marriage  must  be  celebrated  in  presence  of  three 
witnesses  of  full  age,  and  an  act  must  be  made  of  the  celebration, 


16  OF  HUSBAND  AND  WIFE. 

signed  by  tlie  person  wlio  celebrates  the  marriage,  by  the  parties  and 
the  witnesses. 

3L.33;  6L.  463. 

Art.  108. — In  case  of  an  opposition  to  the  marriage,  if  it  be  sup- 
ported by  the  oath  of  the  party  making  it,  and  by  reasons  sufficient  in 
the  opinion  of  the  judge  to  authorize  a  suspension  of  the  marriage,  it 
shall  be  notified  to  the  parties,  and  a  day  shall  be  assigned  for  a  hear- 
ing thereon. 

Art.  109. — The  time  fixed  for  the  hearing  of  the  parties  and  the 
decision  on  the  opposition,  shall  not  exceed  ten  days,  from  the  day  on 
which  the  opposition  shall  have  been  made. 

Art.  110. — Any  person  may  make  an  opposition  to  a  marriage  ;  but 
in  cases  in  which  the  opposition  is  overruled,  the  party  making  it  shall 
pay  costs. 

Art.  111. — No  marriage  can  be  contracted  or  celebrated  by  procu- 
ration. 

CHAPTER  IV. 

OF    THE    NULLITY    OF    MARRIAGES. 

Art.  112. — Marriages  celebrated  without  the  free  consent  of  the 
married  persons,  or  of  one  of  them,  can  only  be  annulled  upon  applica- 
tion of  both  the  parties,  or  of  that  one  of  them  whose  consent  was  not 
free. 

When  there  has  been  a  mistake  in  the  person,  the  party  laboring 
under  the  mistake  can  alone  impeach  the  marriage. 

Art.  113. — In  the  cases  embraced  by  the  preceding  article,  the  ap- 
plication to  obtain  a  sentence  annulling  the  marriage,  is  inadmissible, 
if  the  married  persons  have,  freely  and  without  constraint,  cohabited 
together  after  recovering  their  liberty  or  discovering  the  mistake. 

Art.  114. — The  marriage  of  minors,  contracted  without  the  con- 
sent of  the  father  and  mother,  cannot  for  that  cause  be  annulled,  if  it 
is  otherwise  contracted  with  the  formalities  prescribed  by  law ;  but 
such  want  of  consent  shall  be  a  good  cause  for  the  father  and  mother 
to  disinherit  their  children  thus  married,  if  they  think  proper. 

Art.  115. — Every  marriage  contracted  under  the  other  incapacities 
or  nullities  enumerated  in  the  second  chapter  of  this  title,  may  be  im- 
peached either  by  the  married  persons  themselves,  or  by  any  person  in- 
terested, or  by  the  attorney  general. 

Art.  116. — The  other  causes  of  nullity,  which  existed  by  the  an- 
cient laws,  are  abolished. 

3  A.  562. 

Art.  117. — But  in  all  cases  where,  conformably  to  the  preceding 
article,  the  action  of  nullity  may  be  instituted  by  any  interested  person, 
collateral  relations,  or  children  born  of  another  marriage,  cannot  bring 
such  an  action  during  the  life  of  the  married  persons,  but  only  when 
they  have  acquired  an  actual  interest  therein. 

Art.  118. — The  married  person,  to  whose  prejudice  a  second  mar- 
riage has  been  contracted,  can  sue  for  the  nullity  of  such  marriage, 
even  during  the  life  of  the  other  party. 

Art.  1 19. — The  marriage,  which  has  been  declared  null,  produces 


17  OF  HUSBAND  AND  WIFE.  17 

nevertheless  its  civil  effects  as  it  relates  to  the  parties  and  their  chil- 
dren, if  it  has  been  contracted  in  good  faith. 

Art.  120. — If  only  one  of  the  parties  acted  in  good  faith,  the  mar- 
riage produces  its  civil  effects  only  in  his  or  her  favor,  and  in  favor  of 
the  children  born  of  the  marriage. 


CHAPTER  V- 

OF    THE    RESPECTIVE    RIGHTS    AND    DUTIES    OF    MARRIED    PERSONS. 

Art.  121. — The  husband  and  wife  owe  to  each  other  mutually, 
fidelity,  support  and  assistance. 

Art.  122. — The  wife  is  bound  to  live  with  her  husband  and  to  fol- 
low him  wherever  he  chooses  to  reside ;  the  husband  is  obliged  to  receive 
her  and  to  furnish  her  with  whatever  is  required  for  the  conveniences 
of  life,  in  proportion  to  his  means  and  conditions. 

5  N.  S.  60 ;  1  A.  315. 

Art.  123. — The  wife  cannot  appear  in  court  without  the  authority 
of  her  husband,  although  she  may  be  a  public  merchant,  or  possess  her 
property  separate  from  lier  husband. 

6  L.  462 ;  10  L.  51,  400,  570  ;  1  R.  230,  46S ;  2  R.  368 ;  11  R.  506;  1  A.  260. 

Art.  124. — The  wife,  even  when  she  is  separate  in  estate  from  her 
husband,  cannot  alienate,  grant,  mortgage  or  acquire  either  by  gratui- 
tous or  incumbered  title,  unless  her  husband  concurs  in  the  act,  or 
yields  his  consent  in  writing. 

4  L.  305;  10  L.  570 ;  9  R.  173 ;  1  A.  264 

Art.  125. — The  woman  separated  from  bed  and  board  has  no  need 
in  any  case  of  the  authorization  of  her  husband,  as  this  separation  car- 
ries with  it  not  only  a  separation  of  property,  but  a  dissolution  of  the 
community  of  acquests  and  gains. 

Stat.  \st  Ajrril,  1826,  p.  162,  ^  2.— Whatever  in  the  article  two 
thousand  four  hundred  and  ten  of  the  said  Civil  Code  might  be  in  con- 
travention with  the  article  one  hundred  and  twenty-five  of  the  same 
code,  be  and  is  hereby  repealed ;  and  that  this  last  article  shall  be  con- 
sidered as  the  one  being  in  force. 

2  R.  1,  363. 

Art.  126. — If  the  husband  refuses  to  empower  his  wife  to  appear 
in  court,  the  judge  may  give  such  authority. 

6L.469. 

Art.  127. — If  the  husband  refuses  to  empower  his  wife  to  contract, 
the  wife  may  cause  him  to  be  cited  to  appear  before  the  judge,  who 
may  authorize  her  to  make  such  contract,  or  refuse  to  empower  her,  af- 
ter the  husband  has  been  heard,  or  has  made  default. 

12  L.  70;  9  E.  173;  11  R.  506;  1  A.  261. 

Art.  128. — If  the  wife  is  a  public  merchant,  she  may,  without  be- 
ing empowered  by  her  husband,  obligate  herself  in  any  thing  relating 
to  her  trade ;  and  in  such  case,  her  husband  is  bound  also,  if  there  ex- 
ists a  community  of  property  between  them. 

She  is  considered  as  a  public  merchant,  if  she  carries  on  a  sepa- 


18  OF  HUSBAND  AND  WIFE. 

rate  trade,  but  not  if  slie  retails  only  the  merchandise  belonging  to  the 
commerce  carried  on  by  her  husband. 

3  K.  829 ;  6  A.  5T. 

AuT.  129. — If  the  husband  is  under  interdiction  or  absent,  the 
judge  may,  when  satisfied  of  the  fact,  authorize  the  wife  to  sue  or  to  be 
sued,  or  to  make  contracts. 

2K.  282;  UK.  506;  1  A.  261 

Art.  130. — Every  general  authority,  even  although  stipulated  for 
in  the  marriage  contract,  is  void,  except  so  far  as  it  respects  the  admin- 
istration of  the  property  of  the  wife. 

Art.  131. — Proceedings  to  annul  the  acts  of  the  wife  for  want  of 
authority  can  be  instituted  only  by  the  husband  or  wife,  or  by  their 
heirs. 

Art.  1 32. — The  wife  may  make  her  last  will  without  the  authority 
of  her  husband. 


CHAPTER  VI. 

OF    THE    DISSOLUTION    OF    MARRIAGE. 

Art.  133. — The  bond  of  matrimony  is  dissolved, 

1.  By  the  death  of  the  husband  or  wife; 

2.  By  a  divorce  legally  obtained ; 

3.  Whenever  the  marriage  is  declared  null  and  void,  for  one  of  the 
causes  mentioned  in  the  4th  chapter  of  this  title ;  or  when  another 
marriage  is  contracted,  on  account  of  absence,  when  authorized  by  law. 

Separation  from  bed  and  board  does  not  dissolve  the  bond  of  matri- 
mony, since  the  separated  husband  and  wife  are  not  at  liberty  to  marry 
again ;  but  it  puts  an  end  to  their  conjugal  cohabitation,  and  to  the 
common  concerns  which  existed  between  them. 


CHAPTER  VII. 

OF     SECOND     MARRIAGES. 

Art.  134. — The  wife  shall  not  be  at  liberty  to  contract  another 
marriage  until  ten  months  after  the  dissolution  of  her  preceding  mar- 
riage. 


19         OF  SEPARATION  FROM  BED  AND  BOARD.  9 

TITLE  Y. 

OF  THE  SEPARATION  FROM  BED  AND  BOARD 
CHAPTER  t. 

OF    THE    CAUSES    OF    SEPARATION    FROM    BED    AND    BOARD. 

Art.  135. — Separation  from  bed  and  board,  as  it  formerly  existed 
according  to  the  laws  of  the  country,  shall  take  place  for  the  following 
causes. 

T  L.  281. 

Art.  136. — The  husband  may  claim  a  separation,  in  case  of  adul- 
tery on  the  part  of  the  wife. 

Art.  137. — The  wife  may  also  claim  a  separation  in  case  of  adul- 
tery on  the  part  of  her  husband,  when  he  has  kept  his  concubine  in 
their  common  dwelling. 

Art.  138. — Married  persons  may  reciprocally  claim  a  separation  on 
account  of  excesses,  cruel  treatment,  or  outrages  of  one  of  them  to- 
wards the  other,  if  such  ill  treatment  is  of  such  a  nature  as  to  render 
their  living  together  insupportable. 

9L.  419,  452;  10  L.  249-  19  L.  557;  15  L.  61 ;  5  A.  82;  16  L.  26. 

Art.  139. — Separation  may  also  be  reciprocally  claimed  in  the  fol- 
lowing cases,  to  wit : 

1.  Of  a  public  defamation  on  the  part  of  one  of  the  married  per- 
sons towards  the  other; 

2.  Of  abandonment  of  the  husband  by  his  wife  or  the  wife  by  her 
husband ; 

3.  Of  an  attempt  of  one  of  the  married  persons  against  the  life  of 
the  other. 

Const.  1852,  Art.  114. — No  divorce  shall  be  granted  by  the  Legis- 
lature. 

Stat.  \^th  March,  1827,  p.  130,  ^S  1.— From  and  after  the  passing 
of  this  act,  no  divorce  shall  be  granted  unless  for  the  following 
causes : 

The  husband  may  claim  a  divorce,  in  case  of  adultery  on  the  part 
of  his  wife. 

The  wife  may  also  claim  a  divorce  in  case  of  adultery  on  the  part 
of  her  husband,  when  he  has  kejjt  his  concubine  in  the  common  dwell- 
ing, or  openly  and  publicly  in  any  other. 

Married  persons  may  reciprocally  claim  a  divorce  on  account  of  ex- 
cesses, cruel  treatment,  or  outrages  of  one  of  them  towards  the  other, 
if  such  excesses  or  ill  treatments  be  of  such  a  nature  as  to  render  their 
living  together  insupportable. 

The  condcpmation  of  one  of  the  married  persons  to  an  ignominious 
punishment,  shall  be  for  the  other  a  sufficient  cause  of  divorce. 

A  divorce  may  be  equally  claimed  on  the  part  of  the  husband  and 
wife,  when  either  shall  abandon  the  other  for  tlie  space  of  five  years, 
and  when  he  or  she  shall  have  been  summoned  to  return  to  the  common 


20         OF  SEPARATION  FROM  BED  AND  BOARD. 

dwelling,  as  is  now  provided  for  in  cases  of  separation  from  bed  and 
board,  within  one  year  prior  to  the  application  for  such  divorce. 

^  2.  The  district  courts  throughout  the  State,  together  with  the 
parish  court  of  New- Orleans,  shall  have  exclusive  original  jurisdic- 
tion in  cases  of  divorce,  leaving  to  the  parties  or  either  of  them  the 
right  of  appeal  to  the  supreme  court  in  all  such  cases. 

^  3.  All  actions  of  divorce  shall  be  tried,  as  all  other  cases ;  Pro- 
vidpcl,  that  no  witnesses  summoned  by  the  parties  shall  be  declared  to 
be  incompetent  under  the  pretence  of  their  being  the  allies  or  relations 
of  either  the  plaintiff  or  defendant. 

1^  4.  Except  in  the  cases  where  the  husband  or  wife  may  have  been 
sentenced  to  any  infamous  punishment,  or  convicted  of  adultery,  as  pro- 
vided for  in  the  first  section  of  this  act,  no  divorce  shall  be  granted, 
unless  a  judgment  of  separation  from  bed  and  board  shall  have  been 
previously  rendered  between  the  parties,  and  unless  two  years  shall 
have  expired  from  the  date  of  the  judgment  of  separation  from  bed 
and  board,  and  no  reconciliation  may  have  taken  place ;  Provided,  that 
in  the  cases  excepted  above  a  judgment  of  divorce  may  be  granted  in 
the  same  decree  which  pronounced  the  separation  of  bed  and  board. 

^  5.  The  exceptions  to  an  action  of  divorce  shall  be  the  same  as 
those  to  the  action  of  separation  from  bed  and  board,  established  by 
the  articles  149  and  150  of  the  civil  code  now  in  force  throughout  the 
State. 

§  6.  The  action  of  divorce  shall  be  accompanied  with  the  same  pro- 
visional proceedings  to  which  a  suit  for  separation  from  bed  and  board 
may  give  rise,  and  agreeably  to  the  articles  144,  145,  146,  147  and  148 
of  the  civil  code  now  in  force  within  this  State. 

^  7.  That  the  effects  of  a  divorce  shall  not  only  be  the  same  as  are 
determined  in  the  case  of  a  separation  from  bed  and  board,  by  the  ar- 
ticles 152,  153  and  154  of  the  civil  code  now  in  force  in  this  State;  but 
that  it  shall  also  dissolve  for  ever  the  bonds  of  matrimony  between  the 
parties,  and  place  them  in  the  same  situation  with  respect  to  each  other 
as  if  no  marriage  had  ever  been  contracted  between  them. 

§  8.  If  the  wife  who  has  obtained  the  divorce  has  not  sufficient 
means  for  her  maintenance,  the  court  may  allow  her,  in  its  discretion, 
out  of  the  property  of  her  husband,  alimony  which  shall  not  exceed  one 
third  of  his  income.  This  alimony  shall  be  revocable,  in  ease  it  should 
become  unnecessary,  and  in  case  the  wife  should  contract  a  second  mar- 
riage. 

§  9.  In  case  the  divorce  is  granted  im  the  decree  pronouncing  the 
separation  from  bed  and  board,  the  effects  of  such  divorce  shall  be  the 
same  as  regulated  by  the  civil  code  in  case  of  separation  from  bed  and 
board. 

^10.  In  cases  of  divorce  on  account  of  adultery,  the  guilty  party 
can  never  contract  matrimony  with  his  or  her  accomplice  in  the  adultery 
under  the  penalty  of  being  considered  and  prosecuted  as  guilty  of  the 
crime  of  bigamy,  and  under  the  penalty  of  nullity  of  his  new  mar- 
riage. .' 

Stat.  2d  April,  1832,  p.  152,  §  1. — In  addition  to  the  cases  enume- 
rated in  the  first  section  of  this  act  entitled  "  An  act  relative  to  divor- 
ces," approved  the  nineteenth  day  of  March,  one  thousand  eight  hundred 


21  OP  SEPARATION  FROM  BED  AND  BOARD.  21 

and  twenty-seven,  that  whenever  husband  or  wife  has  been  charged  with 
an  infamous  offence,  as  provided  for  by  said  section,  and  shall  actually 
have  fled  from  justice  and  gone  beyond  the  jurisdiction  of  the  State, 
the  husband  or  wife  of  such  fugitive  as  the  case  may  be,  may  claim  a 
divorc^  on  producing  proofs  to  the  judge  who  tries  the  suit  for 
divorce,  that  his  or  her  husband  or  wife  has  actually  been  guilty  of 
such  infamous  ofi"ence,  and  has  so  fled  from  justice,  and  in  such  case  it 
need  not  be  necessary  to  obtain  a  separation  from  bed  and  board. 

^  2.  When  the  defendant  in  such  case  is  absent,  an  att'orney  shall 
be  appointed  to  represent  him  against  whom,  contradictorily,  the  suit 
shall  be  prosecuted. 

9  L.  243 ;  10  L.  251 ;  16  L.  26  ;  6  K.  135 ;  1  A.  315. 


CHAPTER  II. 

OF    THE    rROCEEDINGS    OF    SEPARATION    FROM    BED    AND    BOARD. 

Art.  140. — Separation  is  to  be  claimed,  sued  for  and  pronounced  in 
the  competent  courts  of  justice;  it  cannot  be  made  the  subject  of  arbi- 
tration. 

6  A.  861. 

Art.  141. — Separation  grounded  on  abandonment  by  one  of  the  mar- 
ried persons  can  be  admitted  only  in  the  case  when  he  or  she  has  with- 
drawn himself  or  herself  from  the  common  dwelling,  without  a  lawful 
cause,  has  constantly  refused  to  return  to  live  with  tbe  other,  and  when 
such  refusal  is  made  appear  in  the  manner  hereafter  directed. 

Art.  1 42. — The  absence  of  the  husband  or  wife,  which  has  had  a 
lawful  cause,  although  it  shall  appear  that  the  absentee  has  not  been 
heard  of,  cannot  autliorize  a  demand  of  separation,  except  so  far  as  is 
provided  in  the  title  of  absent  2)crsons. 

Art.  143. — The  abandonment  with  which  the  husband  or  wife  ia 
charged,  must  be  made  appear  b}^  three  reiterated  summonses  made  to 
him  or  her  from  month  to  month,  directing  him  or  her  to  return  to  the 
place  of  the  matrimonial  domicil,  and  followed  by  a  judgment  which  has 
sentenced  him  or  her  to  comply  with  such  request,  together  with  a  noti- 
fication of  the  said  judgment,  given  to  him  or  her  from  month  to  month 
for  three  times  successively. 

The  summons  and  notifications  shall  be  made  to  him  or  her  at  the 
place  of  his  or  her  usual  residence,  if  he  or  she  lives  in  this  State,  and 
if  absent,  at  the  place  of  the  residence  of  the  attorney  who  shall  be  ap- 
pointed to  him  or  her  by  the  judge  for  that  purpose,  at  the  suit  of  the 
husband  or  wife  praying  for  separation  from  bed  and  board. 


CHAPTER  III. 

OF    THE    PROVISIONAL     PROCEEDINGS    TO    WHICH    A    SUIT    FOR.    SEPARATION 
MAY    GIVE    OCCASION. 

Art.  144 — If  there  are  children  of  the  marriage,  whose  provisionaJ 
keeping  is  claimed  by  both  husband  and  wife,  the  suit  being  yet  pend 


/ 


22  OF  SEPARATION  FROM  BED  AND  BOARD. 

mg  and  undecided,  it  shall  be  granted  to  the  husband,  whether  plaintif 
or  defendant,  unless  there  should  be  strong  reasons  to  deprive  him  of  it, 
either  in  whole  or  in  part,  the  decision  whereof  is  left  to  the  discretion 
of  the  judge. 

Art.  145. — If  the  wife,  who  sues  for  a  separation,  has  left  or  de- 
clared her  intention  to  leave  the  dwelling  of  her  husband,  the  judge 
shall  assign  the  house  wherein  she  shall  be  obliged  to  dwell  until  the 
determination  of  the  suit. 

The  wife  shall  be  subject  to  prove  her  said  residence  as  often  as  she 
may  be  required  to  do  so,  and  in  case  she  fails  so  to  do,  every  proceed- 
ing on  the  separation  shall  be  suspended. 

Art.  146. — If  the  wife  has  not  a  sufficient  income  for  her  mainte- 
nance during  the  suit  for  separation,  the  judge  shall  allow  her  a  sum  for 
her  support,  proportioned  to  the  means  of  the  husband. 

The  husband  cannot  be  compelled  to  pay  this  allowance,  unless  the 
wife  proves  that  she  has  constantly  resided  in  the  house  appointed  by 
the  judge. 

1  N.  S.  93. 

Art.  147. — During  the  suit  for  separation,  the  wife  may,  for  the 
preservation  of  her  rights,  require  an  inventory  and  appraisement  to  be 
made  of  the  movables  and  immovables  which  are  in  possession  of  her 
husband,  and  an  injunction  restraining  him  from  disposing  of  any  part 
thereof  in  any  manner. 

Art.  148. — From  the  day  on  which  the  action  of  separation  shall 
be  brought,  it  shall  not  be  lawful  for  the  husband  to  contract  any  debt 
on  account  of  the  community,  nor  to  dispose  of  the  immovables  or  slaves 
belonging  to  the  same,  and  any  alienation  by  him,  made  after  that  time 
shall  be  null,  if  it  be  proved  that  such  alienation  was  made  with  the 
fraudulent  view  of  injuring  the  rights  of  the  wife. 

6  L.  459. 

CHAPTER  IV. 

OF  OBJECTIONS    TO    THE    ACTION    OF    SEPARATION     FROM     BED     AND    BOARD 

Art.  149. — The  action  of  separation  shall  be  extinguished  by  the 
reconciliation  of  the  parties,  either  after  the  facts  which  might  have  given 
ground  to  such  action,  or  after  the  action  has  been  commenced. 

See  amendment  to  Art.  139,  §  5 ;  9  L.  24.3. 

Art.  1 50. — In  either  case  the  plaintiff  shall  be  precluded  from  bring- 
ing his  action ;  but  he  shall  be  at  liberty  to  bring  a  new  suit  for  causes 
arising  since  the  reconciliation,  and  therein  make  use  of  the  former  mo- 
tives to  corroborate  his  new  action. 

See  amendment  to  Art.  139,  §  5;  9  L.  243. 

CHAPTER  V. 

OF  THE  EFFECTS  OF  SEPARATION  FROM  BED  AND  BOARD. 

Art.  151. — Separation  from  bed  and  board  carries  with  it  separation 
of  goods  and  effects 


23  OF  MASTER  AND  SERVANT.  23 

Art.  152. — In  case  of  separation  from  bed  and  board,  the  party 
against  whom  it  sliall  Lave  been  pronounced,  shall  lose  all  the  advantages 
or  donations  the  other  party  may  have  conferred  by  the  marriage  con- 
tract or  since,  and  the  party  at  whose  instance  the  separation  has  been 
obtained  shall  preserve  all  those  to  which  such  party  would  have  been 
entitled ;  and  these  dispositions  are  to  take  place  even  in  case  the  ad- 
vantages and  donations  were  reciprocally  made. 

Art.  153. — In  all  cases  of  separation,  the  children  shall  be  placed 
under  the  care  of  the  party  who  shall  have  obtained  the  separation,  un- 
less the  judge  shall,  for  the  greater  advantage  of  the  children,  and  with 
the  advice  of  the  meeting  of  the  family,  order  that  some  or  all  of  them 
shall  be  intrusted  to  the  care  of  the  other  party. 

Art.  154. — This  separation  shall  not  in  any  ease  deprive  tlie  children 
born  of  the  marriage,  of  any  of  the  advantages  Avhich  were  secured  ro 
them  by  law,  or  by  the  marriage  contract  of  tlieir  father  and  mother ;  but 
there  is  no  right  to  any  claim  on  the  part  of  such  children,  except  in  the 
manner  and  under  the  circumstances  where  such  claims  would  have  ta- 
ken place  if  there  had  been  no  separation. 


TITLE  VI. 

OF  MASTER  AND  SERVANT. 
CHAPTER  I. 

OF  THE  SEVERAL  SORTS  OF  SERVANTS. 

Art.  155. — There  are  in  this  State  two  classes  of  servants,  to  wit : 
the  free  servants  and  the  slaves. 

CHAPTER  II. 

OF    FREE    SERVANTS. 

Art.  I5G. — Free  servants  are  in  general  all  free  persons  who  let, 
hire,  or  engage  their  services  to  another  in  this  State,  to  be  employed 
therein  at  any  work,  commerce  or  occupation  whatever,  for  the  benefit 
of  him  who  has  contracted  with  them,  for  a  certain  price  or  retribution, 
or  upon  certain  conditions. 

Art.  157. — There  are  three  kinds  of  free  servants  in  this  State,  to 
wit : 

1 .  Those  who  only  hire  out  their  services  by  the  day,  week,  month 
or  year,  in  consideration  of  certain  wages ;  the  rules  which  fix  the  ex- 
tent and  limits  of  those  contracts  are  established  in  the  title  of  letting 
and  hiring ; 

2.  Those  who  engage  to  serve  for  a  fixed  time  for  a  certain  conside- 
ration, and  wlio  are  therefore  considered  not  as  having  hired  out  but  as 
having  sold  their  services ; 


24  OF  MASTER  AND  SERVAN'T. 

3.  Apprentices,  that  is,  those  who  engage  to  serve  any  one,  in  ordei 
to  learn  some  art,  trade  or  profession. 

Whatever  relates  to  persons  whose  time  of  service  is  sold  for  paying 
their  passage,  is  prescribed  by  a  special  law,  which  is  not  repealed  by 
this  title. 

Ar.T.  158. — The  minor  cannot  be  bound  to  serve,  but  with  the  con- 
sent of  his  father  and  mother,  tutor  or  curator.  If  he  has  no  tutor  or 
curator,  with  the  consent  of  the  judge  of  the  parish  where  the  act  of  his 
engagement  is  passed. 

Art.  159. — The  time  of  the  engagement  of  the  minors,  if  there  be 
no  stipulation  that  it  shall  terminate  sooner,  shall  expire,  for  males  when 
they  attain  the  age  of  eighteen  years,  and  females  when  they  attain  the 
age  of  fifteen. 

Stat.  1st  Ajjril,  1826,  p.  162. — §  4.  The  one  hundred  and  fifty-eighth 
and  one  hundred  and  fifty-ninth  articles  of  the  Civil  Code  be  and  are 
hereby  repealed,  and  that  the  act  of  the  legislature  entitled  :  An  act  for 
the  regulation  of  the  rights  and  duties  of  apprentices  and  indented  ser- 
vants," passed  on  the  twenty-first  of  May,  eighteen  hundred  and  six,  be 
and  is  hereby  revived  in  everything  which  is  not  contrary  or  repugnant 
to  the  provisions  of  the  Civil  Code,  which  are  not  expressly  repealed  by 
this  act. 

Stat.  21  St  May,  1806,  p.  44. — Whereas  great  inconveniences  do  fre- 
quently result  from  losses  sustained  by  masters  and  mistresses  of  ap- 
prentices and  indented  servants,  for  want  of  some  uniform  mode  of  bind- 
ing them  and  regulating  their  conduct  and  behavior  during  the  term  of 
time  expressed  in  their  respective  indentures,  and  to  prevent  them  from 
absenting  themselves  from  the  service  of  their  master  or  mistress,  and 
punish  them  for  their  improper  behavior,  as  well  as  to  make  the  cove- 
nants between  them  mutually  obligatory ;  for  remedy  thereof, 

^  1  All  and  every  person  or  persons  who  may  be  bound  to  serve 
either  as  an  apprentice  in  any  art,  mystery  or  occupation,  or  as  a  servant 
for  the  sole  purpose  of  ordinary  or  hard  labor,  shall  be  bound  to  serve 
the  term  of  time  expressed  in  their  indentures  respectively  :  Provided 
always,  That  if  the  party  so  bound  as  aforesaid  be  under  the  age  of 
twenty-one  years,  he  or  she  must  be  bound  with  the  assent  of  his  or  her 
parent  guardian  or  curator,  or  in  case  there  be  no  such  person  in  the 
county  where  the  apprentice  or  servant  resides,  then  by  and  with  the  as- 
sent of  the  mayor  of  any  city  which  now  exists  or  may  be  erected  here- 
after in  the  territory  of  Orleans,  or  the  judge  of  the  proper  county,  with 
the  approbation  of  one  or  more  justices  of  the  peace  within  the  same  : 
Provided  nevertlieless,  if  the  party  so  bound  be  a  female,  that  the  term 
of  years  of  her  apprenticeship  shall  expire  at  or  before  she  arrives  at  the 
age  of  eighteen  years,  and  if  a  male  at  the  period  in  which  he  shall  arrive 
at  the  age  of  twenty-one  years ;  and  if  the  party  either  male  or  female 
be  over  the  age  of  twenty-one  years  at  the  time  of  his  or  her  entering  into 
indenture  either  of  apprenticeship  or  servitude,  they  shall  be  perfectly  at 
liberty  to  bind  him  or  herself  (if  they  be  of  sound  mind  and  memory)  for 
a  time  not  exceeding  seven  years,  agreeable  to  the  provisions  of  this  act . 
any  law,  usage  or  custom  to  the  contrary  notwithstanding. 


25  OF  MASTER  AND  SERVANT.  25 

^  2.  All  indentures  hereafter  to  be  made  and  executed  shall  be 
signed  and  delivered  by  the  party  so  bound,  in  pi-eseuce  of  at  least  two 
witnesses,  one  of  whom  (if  the  party  be  under  the  age  of  twenty-one 
years)  shall  be  either  the  parent,  guardian  or  curator  (if  such  exist),  be- 
fore the  mayor  of  any  city,  or  the  jiidge  of  any  county  in  this  territory 
who  shall  certify  the  same ;  and  the  said  mayor  or  judge,  as  the  case 
may  be,  shall  receive  for  either  of  their  services  in  and  about  the  same, 
the  sum  of  five  dollars ;  and  the  said  judge  may  or  shall  order  the  par- 
ties applying  for  indentures  of  apprenticeship,  to  draw  the  same  accord- 
ing to  the  following  form,  viz. 

"  This  indenture,  made  the  day  of  in  the 

year  of  our  Lord  Witnesseth,  that  for  divers  good  causes 

and  considerations,  A.  B.  (if  under  the  age  of  twenty-one  years,  say  with 
the  consent  of  liis  or  her  parent,  guardian  or  curator,  or  if  none  sucli  ex- 
ist, then  with  the  consent  and  approbation  of  the  mayor,  judge,  or  two 
justices  of  the  peace  in  the  proper  county),  hath  bound  and  put  him  or 
herself  apprentice  unto  C.  D.  to  learn  the  art,  trade,  mystery,  or  occupa- 
tion of  which  the  said  C.  D.  now  useth,  and  to  dwell  and  con- 
tinue with  the  said  C.  D.,  his  executors  or  administrators,  from  the  day 
of  the  date  hereof,  until  the  full  end  and  term  of  years ;  during 
all  which  period  said  apprentice  shall  faithfully  serve  his  (or  her)  master 
or  mistress,  and  obey  his  (or  her)  lawful  commands,  and  not  depart  said 
service  without  their  consent.  And  the  said  master  or  mistress,  in  con- 
sideration of  the  sum  of  dollars,  in  hand  paid  by  the  said  ap- 
prentice, in  the  said  art,  trade,  mystery  or  occupation  aforesaid,  with  all 
things  thereunto  belonging,  shall  and  will  teach  or  cause  to  be  taught, 
and  shall  during  the  whole  of  said  period  find  said  apprentice  with  good 
and  sufiicicut  food,  meat,  drink,  washing  and  lodging,  (apparel  if  the  in- 
dentures express  the  same.)  In  witness  whereof,  the  said  A.  B.  hath 
hereunto  set  his  hand  and  seal,  the  day  and  year  first  above  written. 

Signed,  sealed  and  delivered  in  presence  of 

Q  jj*  A.  B.    {  .s,Y// 


And  the  following  form  shall  hereafter  be  observed  for  indentures  of 
servitude,  viz. 

"  This  indenture,  made  the  day  of  in  the 

year  of  our  Lord  Witnesseth,  that  A.  B.  (if  under  twenty- 

one  years  of  age,  say  with  consent,  &c.,  as  in  the  preceding  form),  of  the 
county  of  in  the  territory  of  Orleans,  for  and  in  consideration 

of  the  sum  of  dollars  to  him  (or  her)  in  hand  paid  by  C.  D.  of  the 

same  place,  as  also  for  divers  other  good  causes,  hath  bound  and  put  him- 
self servant  to  the  said  C.  D.,  to  serve  him,  his  executors  and  assigns,  from 
the  day  of  the  date  hereof,  for  and  during  the  term  of  years  thence 

next  ensuing,  during  all  which  term  the  said  servant,  his  said  master,  his 
executors  and  assigns,  faithfully*liall  serve,  and  that  honestly  and  obedi- 
sntly  in  all  things  as  a  good  and  dutiful  servant  ought  to  do  ;    and  the 


26  OF  MASTER  AND  SERVANT 

said  master  or  mistress,  las  or  her  executors  and  assigns,  during  the  said 
term  shall  find  and  provide  for  the  said  A.  B.  sufficient  meat,  drink, 
apparel  and  lodging.  In  witness  whereof  the  said  A.  B.  hath,  &c.,as 
in  the  foregoing  precedent." 

§  3.  If  any  master  or  mistress  shall  abuse  or  cruelly  or  evilly  treat 
or  shall  not  discharge  his  or  her  duty  towards  his  or  her  apprentice  or 
servant,  or  if  said  apprentice  or  servant  shall  abscond  or  absent  him  or 
herself  from  the  service  of  his  or  her  master  or  mistress,  without  leave, 
or  shall  not  do  or  discharge  his  or  her  duty  to  his  or  her  master  or  mis- 
tres,  then  said  master  or  mistress,  or  apprentice,  or  servant,  being  ag- 
grieved, shall  or  may  apply  to  the  judge  of  any  county  where  the  parties 
reside  for  redress,  who,  after  giving  due  notice  to  the  party  against  whom 
the  complaint  is  lodged,  and  bringing  said  parties  (by  warrant  or  other- 
wise), before  him,  shall  take  such  order  and  direction  between  the  said 
master  or  mistress,  and  apprentice  or  servant,  as  the  etpity  and  justice 
of  the  case  may  require. 

§  4.  When  any  master  or  mistress  shall  remove  from  this  territory 
or  die,  before  the  term  of  an  apprentice  who  has  been  bound  for  the  pur- 
pose of  acquiring  the  knowledge  of  any  art,  mystery,  or  occupation,  hath 
expired,  then  the  mayor  of  any  city,  or  the  judge  of  any  county  within 
this  territory,  where  such  decedent  had  resided,  shall  have  power  to  as- 
sign over  the  remainder  of  the  term  of  apprenticeship  to  such  other 
suitable  person  of  the  same  trade,  or  calling,  mentioned  in  the  inden- 
ture ;  and  the  assigns  shall  have  the  same  rights  to  the  service  of  such 
apprentice  as  the  master  or  mistress  had  at  the  time  of  his  or  her  death 
or  removal :  Provided,  That  nothing  in  this  section  contained  shall  be 
so  construed  as  to  extend  to  servants  whose  indentures  are  assignable, 
and  who  have  been  bound  for  the  sole  purpose  of  ordinary  and  hard 
labor. 

§  5.  Whenever  any  apprentice  or  bound  servant  shall  abscond  or  ab- 
sent him  or  herself  from  the  service  of  his  or  her  master  without  leave, 
that  upon  due  proof  being  made  to  the  satisfaction  of  any  mayor  or  jvidge 
of  any  county  court  in  this  territory,  the  said  mayor  or  judge  shall  have 
full  power  to  compel  the  party  thus  absconding  to  serve  his  or  her  mas- 
ter or  mistress,  two  days  for  every  one  that  he  or  she  has  absented  him 
or  herself,  or  pay  such  damages  as  said  mayor  or  judge  may  think  equi- 
table and  just  to  his  or  her  said  master  or  mistress. 

^  6.  In  every  case  where  any  person  shall  be  bound  in  any  place, 
whore  there  shall  be  a  school  established,  either  as  an  apprentice  or  ser- 
vant, who  shall  be  under  the  age  of  twenty-one  years,  there  shall  be  a 
clause  in  their  indentures  binding  the  master  or  mistress  to  teach  or 
cause  to  be  taught  the  said  apprentice  or  servant  to  read  and  write,  as 
also  to  instruct  him  in  the  fundamental  principles  of  arithmetic. 

^  7.  All  laws,  usages  and  customs  on  the  subject  of  apprentices  are 
abrogated  and  repealed,  and  this  act  shall  be  in  full  force  from  and  after 
the  passage  thereof. 

Art.  IGO. — Persons  who  have  attained  the  age  of  majority  cannot 
bind  themselves  for  a  longer  term  than  five  years. 

Art.  1 6 1 . — Engagements  of  service  contracted  in  a  foreign  country 
for  a  longer  term  shall  be  reduced  to  five  years,  to  count  from  the  day 
f)f  the  arrival  of  the  person  bound  in  this  State. 


27  OF  MASTER  AND  SERVANT.  2"? 

Art.  162. — The  act  of  the  engagement  of  service  must  be  passed  be- 
fore a  notary  i^ublic,  or  a  person  authorized  to  perform  his  duties.  It 
must  be  read  to  the  parties  in  presence  of  two  witnesses,  and  must  be 
signed  by  them,  the  witnesses  and  the  notary. 

Art.  163. — An  implied  condition  of  the  contract  entered  into  be- 
tween the  master  and  bound  servant  or  apprentice,  is  that  the  latter 
binds  himself  to  serve  the  former  during  all  the  time  of  his  engagement, 
and  the  master  on  his  side  binds  himself  to  maintain  the  indented  ser- 
vant or  apprentice  during  the  same  time. 

The  master  is  also  bound  to  instruct  the  apprentice  in  his  art,  trade 
or  profession,  and  to  teach  him  or  cause  him  to  be  taught  to  read,  wi'ite 
and  cypher. 

Art.  164. — Bound  servants  and  apprentices  and  their  masters  may 
be  compelled  to  the  specific  performance  of  their  respective  engagements, 
but  these  engagements  may  be  rescinded  before  the  time  fixed  by  the 
contract,  either  at  the  suit  of  such  bound  servants  or  apprentices  respec 
lively,  or  at  the  demand  of  the  master,  if  they  have  a  just  cause  to  claim 
such  rescission,  and  in  such  case  the  judge  shall  direct  a  restitution  of 
such  part  of  the  money  received  on  account  of  such  engagement,  in  pro- 
portion to  the  time  not  yet  elapsed  of  that  which  has  been  fixed  by  the 
indenture,  unless  such  rescission  is  occasioned  by  the  fault  of  him  who 
paid  the  money,  in  which  case  no  restitution  shall  be  made. 

Art.  165. — If  any  master  shall  abuse,  or  cruelly  or  evilly  treat  his 
bound  servant  or  apprentice,  or  shall  not  discharge  his  duty  towards  him, 
or  if  the  bound  sei-vant  or  apprentice  shall  abscond  or  absent  himself 
from  the  service  of  his  master  without  leave,  or  shall  not  discharge  his 
duty  to  his  master,  in  any  of  these  cases  there  will  be  a  sufiicient  cause  to 
release  the  aggrieved  party  from  his  engagement,  or  to  grant  him  such 
other  redress  as  the  equity  and  the  nature  of  the  case  may  require,  at 
the  discretion  of  the  judge. 

Art.  166. — The  death  of  the  master  of  the  apprentice  dissolves  the 
engagement  of  the  latter,  in  the  condition  in  which  it  is,  and  there  can 
be  no  claim  for  remuneration  on  either  side.  But  if  the  heir  or  one  of 
the  heirs  of  the  master  be  a  man  of  the  same  condition,  trade  or  profes- 
sion, he  can  cause  himself  to  be  authorized  to  take  the  place  of  the  de- 
ceased with  regard  to  the  apprentice. 

Art.  167. — A  master  may  correct  his  indented  servant  or  apprentice 
for  negligence  or  other  misbehavior,  provided  he  does  it  with  modera- 
tion, and  provided  he  does  not  make  use  of  the  whip;  but  he  cannot  ex- 
ercise such  rights  with  those  who  only  let  their  daily  services. 

10M.88. 

Art.  168. — The  master  may  bring  an  action  against  any  man  for 
beating  or  maiming  his  servant,  but  in  such  case  he  must  assign  as  a 
cause  of  action  his  own  damage  arising  from  the  loss  of  his  service, 
and  this  loss  must  be  proved  upon  the  trial. 

Art.  169. — A  master  may  justify  an  assault  in  defence  of  his  ser- 
vant, and  a  servant  in  defence  of  his  master,  the  master  because  he  has 
an  interest  in  his  .servant,  not  to  be  deprived  of  his  service ;  the  ser- 
vant, because  it  is  a  part  of  his  duty,  for  which  he  receives  wages,  to 
Btand  by  and  defend  his  master. 


28  OF  MASTER  AND  SERVANT. 

Art.  170. — The  master  is  answerable  for  tbe  oflfences  aLii  gjiasi 
offences  committed  by  his  servants,  according  to  the  rules  which  arc 
explained  under  the  title  of  quasi-contracts  and  quasi-crimes  or 
offences. 

2  A- 406. 

Art.  171. — The  master  is  answerable  for  the  damage  caused  to  in- 
dividuals or  to  the  community  in  general  by  whatever  is  thrown  out  of 
his  house  into  the  street  or  public  road  ;  inasmuch  as  the  master  has 
the  superintendence  and  police  of  his  house,  and  is  responsible  for  the 
faults  committed  therein. 


CHAPTER  III. 

OF    SLAVES. 

Art.  172. — The  rules  prescribing  the  police  and  conduct  to  be  ob- 
served with  respect  to  slaves  in  this  State,  and  the  punishment  of  their 
crimes  and  offences,  are  fixed  by  special  laws  of  the  Legislature. 

Art.  173. — The  slave  is  entirely  subject  to  the  will  of  his  master, 
who  may  correct  and  chastise  him,  though  not  with  unusual  rigor,  nor 
so  as  to  maim  or  mutilate  him,  or  to  expose  him  to  the  danger  of  loss 
of  life,  or  to  cause  his  death. 

8  A.  618 ;  See  2  L.  5S1 ;  9  L.  492 ;  7  N.  S.  850. 

Art.  174. — The  slave  is  incapable  of  making  any  kind  of  contract, 
except  those  which  relate  to  his  own  emancipation. 

3  A.  556. 

Art.  175. — All  that  a  slave  possesses,  belongs  to  his  master;  he 
possesses  nothing  of  his  own,  except  his  2^(^culium,  that  is  to  say,  the 
sum  of  money,  or  movable  estate,  which  his  master  chooses  he  should 
possess. 

8  A.  6ST. 

Art.  176. — They  can  transmit  nothing  by  succession  or  otherwise; 
but  the  succession  of  free  persons  related  to  them  which  they  would 
have  inherited  had  they  been  free,  may  pass  through  them  to  such  of 
their  descendants  as  may  have  acquired  their  liberty  before  the  succes- 
sion is  opened. 

See  6  L.  560. 

Art.  177. — The  slave  is  incapable  of  exercising  any  public  office, 
or  private  trust ;  he  cannot  be  tutor,  curator,  executor  nor  attorney  ; 
he  cannot  be  a  witness  in  either  civil  or  criminal  matters,  except  in 
cases  provided  for  by  particular  laws.  He  cannot  be  a  party  in  any 
civil  action,  either  as  plaintiff  or  defendant,  except  when  he  has  to 
claim  or  prove  his  freedom. 

4  ]SL  577  ;  6  M.  731 ;  8  M.  161 ;  6  A.  223 ;  7  N.  S.  850 ;  See  9  L.  4SS,  492. 

Art.  178. — When  slaves  are  prosecuted  in  the  name  of  the  State, 
for  offences  they  have  committed,  notice  must  be  given  to  their  mas- 
ters. 

1  A.  178;  6  A.  87'. 

Art.  179, — Masters  are  bound  by  the  acts  of  their  slaves  done  by 
their  command,  as  also  by  their  transactions  and  dealings  with  respect 


29  OF  MASTER  AND  SERVANT.  29 

to  the  business  in  which  they  have  intrusted  or  employed  them ;  but 
in  case  they  should  not  have  authorized  or  intrusted  them,  they  shall 
be  answerable  only  for  so  much  as  they  have  benefited  by  the  transac- 
tion. 

Art.  180. — The  master  shall  be  answerable  for  all  the  damages  oc- 
casioned by  an  offence  or  qiiasi-oSence  committed  by  his  slave,  inde- 
pendent of  the  punishment  inflicted  on  the  slave. 

9  L.  889  ;  7  L.  592 ;  1  A.  173 ;  2  A.  406 ;  6  A.  476 ;  10  K.  234 

Art.  1 8 1 . — The  master,  however,  may  discharge  himself  from  such 
responsibility  by  abandoning  liis  slave  to  the  person  injured ;  in  which 
case  such  person  shall  sell  such  slave  at  public  auction  in  the  usual 
form,  to  obtain  payment  of  the  damages  and  costs ;  and  the  balance,  if 
any,  shall  be  returned  to  the  master  of  the  slave,  who  shall  be  com- 
pletely discharged,  although  the  price  of  the  slave  should  not  be  suffi- 
cient to  pay  the  whole  amount  of  the  damages  and  costs ;  provided 
that  the  master  shall  make  the  abandonment  within  three  days  after 
the  judgment  awarding  such  damages  shall  have  been  rendered  ;  pro- 
vided, also,  that  it  shall  not  be  proved  that  the  crime  or  offence  was 
committed  by  his  order ;  for  in  case  of  such  proof  tlie  master  shall  be 
answerable  for  all  damages  resulting  therefrom,  whatever  be  the  amount, 
without  being  admitted  to  the  benefit  of  the  abandonment. 

1  A.  173 ;  2  A.  406 ;  7  L.  5S6. 

Art.  182. — Slaves  cannot  marry  without  the  consent  of  their  mas- 
ters, and  their  marriages  do  not  produce  any  of  the  civil  effects  which 
result  from  such  contract. 

6  M.  559. 

Art.  183. — Children  born  of  a  mother  then  in  a  state  of  slavery, 
whether  married  or  not,  follow  the  condition  of  their  mother ;  they  are 
consequently  slaves  and  belong  to  the  master  of  their  mother. 

8  A.  492,  600. 

Art.  184. — A  master  may  manumit  his  slave  in  this  State,  either 
by  an  act  ifite?-  vivos  or  by  a  disposition  made  in  prospect  of  death, 
provided  such  manumission  be  made  with  the  forms  and  under  the  con- 
ditions prescribed  by  law ;  but  an  enfranchisement,  when  made  by  a 
last  will,  must  be  express  and  formal,  and  shall  not  be  implied  by  any 
other  circumstances  of  the  testament,  such  as  a  legacy,  an  institution 
of  heir,  testamentary  executorship  or  other  dispositions  of  this  nature, 
which  in  such  case  shall  be  considered  as  if  they  had  not  been  made. 

Stat.  I8th  March,  1852,  p.  214. — ^  I.  Hereafter  no  slave  or  slaves 
shall  be  emancipated  in  this  State,  except  upon  express  condition  that 
when  emancipated,  they  shall  be  sent  out  of  the  United  States  within 
twelve  months  after  being  emancipated,  and  that  the  police  jurors  of 
the  several  parishes  of  this  State,  and  the  common  council  of  New  Or- 
leans, before  granting  any  act  of  emancipation  of  any  slave  or  slaves, 
shall  require  the  owner  or  owners,  person  or  persons  so  desiring  said 
emancipation,  to  deposit  in  the  parish  treasury  in  which  said  act  is  to 
be  made,  or  with  the  mayor  of  the  eity  of  New-Orleans,  the  sum  of  one 


30  OF  MASTER  AND  SERVANT, 

hundred  and  fifty  dollars  for  eaeli  slave  to  be  so  emancipated,  to  be  ap- 
plied in  payment  of  voyage  to  Africa  and  support  after  arrival. 

§  2.  All  slaves  whose  claims  for  emancipation  has  not  yet  been  per- 
fected by  the  proper  authorities,  shall  only  receive  the  same  upon  the 
conditions  of  the  first  section  of  this  act,  and  upon  failing  to  comply 
with  the  same,  shall  be  hired  out  by  the  owner  or  owners,  person  or 
persons  having  the  legal  charge  of  said  slave  or  slaves,  and  in  case  none 
such  exists,  then  the  judge  of  the  district  shall  appoint  an  agent  for 
that  purpose,  who  shall  hire  out  said  slave  or  slaves  until  the  sum  of 
one  hundred  and  fifty  dollars  have  been  made  and  deposited  as  afore- 
said, after  which,  the  said  act  of  emancipation  may  be  perfected  and 
said  slave  or  slaves  sent  to  Liberia  within  one  year  ;  Frovided,  that  in 
case  any  slave  or  slaves,  after  having  been  so  emancipated,  should  not 
be  sent  to  Liberia  within  one  year  after  being  liberated,  or  should  re- 
turn again  after  being  sent,  said  slave  or  slaves  shall  forfeit  their  free- 
dom and  become  slaves  and  revert  to  their  former  owners  or  their  legal 
representatives  as  such. 

§  3.  This  act  shall  not  take  efi"ect  until  six  months  from  and  after 
its  passage. 

4E.  409;  5E.  200. 

Ap^t.  185. — No  one  can  emancipate  his  slave,  unless  the  slave  has 
attained  the  age  of  thirty  years,  and  has  behaved  well  at  least  for  four 
years  preceding  his  emancipation. 

Stat.  9th  March  1807,  p.  82. — ^  1.  No  person  shall  be  compelled, 
either  directly  or  indirectly,  to  emancipate  his  or  her  slave  or  slaves, 
but  in  the  case  only  where  the  said  emancipation  shall  be  made  in  the 
name  and  at  the  expense  of  the  territory,  by  virtue  of  an  act  of  the 
Legislature  of  the  same. 

^  2.  No  person  shall  emancipate  any  of  his  or  her  slaves,  unless 
said  slave  or  slaves  be  thirty  years  of  age,  and  unless  besides,  he,  she 
or  they  have  during  the  four  years  previous  to  the  day  of  his,  her  or 
their  emancipation,  led  an  honest  conduct,  without  having  ran  away, 
and  without  having  committed  any  robbery,  or  having  been  guilty  of 
any  other  criminal  misdemeanor,  provided  the  conditions  required  to 
be  complied  with  by  the  present  section  be  not  necessary  in  cases  when 
the  slave  or  slaves  to  be  emancipated  shall  have  saved  the  life  of  their 
master,  of  his  wife,  or  of  any  of  his  children. 

§  3.  It  shall  be  the  duty  of  every,  person  who  intends  to  emancipate 
any  one  of  his  or  her  slaves,  to  declare  to  the  judge  of  his  or  her  coun- 
ty, that  the  said  slave  or  slaves  to  be  set  free  have  the  age,  and  have 
led  the  conduct  requisite  by  the  second  section  of  this  act,  to  entitle 
them  to  their  emancipation.  It  shall  be  the  duty  of  the  judge  to  issue 
immediately  an  order  that  the  following  notice  be  posted  up  in  his 
county,  both  in  the  French  and  English  languages,  to  wit : 

A.  N.,  inhabitant  in  the  county  of  ,  having  intention  to 

emancipate  his  or  her  slave  or  slaves  (male  or  female),  named 

and  years  of  age,  every  person  who  may  have  any  legal 

opposition  to  said  emancipation  is  required  to  file  said  oppositions  in 
the  ofiice  of  the  county  court  of  said  county,  within  forty  days  from 
the  date  of  the  present  notice. 

Signed  M.  R. 

Sheriff  of  the  county  of 


31  OF  MASTER  AND  SERVANT.  31 

After  the  expiration  of  said  delay,  if  there  be  no  opposition,  or  if 
the  judge  decide  the  oppositions  made  are  not  valid,  it  shall  be  the 
duty  of  said  judge  to  authorize  the  petitioner  to  cause  the  instrument 
of  such  emancipation  to  be  made,  which  said  emancipation  shall  bo 
valid  to  all  intents  and  purposes,  unless  the  same  should  be  contested 
afterwards,  as  having  been  made  with  a  view  to  defraud  creditors,  mi- 
nors, or  people  either  absent  from  the  territory,  or  residing  out  of  the 
county  in  which  notice  of  such  an  intended  emancipation  was  given, 
and  tills  intention  to  defraud  creditors  shall  always  be  presumed,  if  at 
the  time  of  the  emancipation  taking  place,  the  donor  had  not  property 
sufficient  to  pay  his  or  her  said  creditors,  except  the  slave  or  slaves 
emancipated. 

^  4.  Every  act  of  emancipation  made  contrary  to  the  provisions  of 
the  preceding  section  shall  be  null  and  void ;  and  the  proprietor  who 
shall  have  consented  thereto,  and  the  public  officer  who  shall  have 
passed  said  instrument,  shall  both,  on  conviction,  forfeit  the  sum  of  one 
hundred  dollars, — the  half  of  which  shall  be  to  the  benefit  of  the  in- 
former, and  the  other  half  to  the  treasury  of  the  territory. 

^  5.  Every  act  of  emancipation  of  slave  or  slaves  shall  include 
with  it  the  tacit  but  formal  obligation  on  the  part  of  the  donor  to  nour- 
ish and  maintain  said  slave  or  slaves  by  him  or  her  thus  emancipated, 
when  said  slave  or  slaves  shall  be  in  want,  owing  to  sickness,  old  age, 
insanity,  or  any  other  proved  infirmity.  And  if  in  such  case,  said  do- 
nor should  refuse  to  fulfil  this  obligatory  duty  of  humanity,  it  shall  be 
the  duty  of  any  judge  to  whom  such  a  refusal  shall  be  made  to  appear 
and  be  proved,  to  condemn  said  donor  to  pay  every  month  to  the  eman- 
cipated slave  or  slaves,  by  him  or  her  thus  abandoned,  such  sum  as  ' 
said  judge  may,  in  his  discretion,  determine  sufficient  to  assure  the  sub- 
sistence, the  maintenance  and  treatment  of  said  emancipated  slave  or 
slaves,  during  the  whole  time  that  he,  she  or  they  shall  be  unable  to 
provide  for  their  own  maintenance  and  support. 

^  6.  When  the  emancipation  of  any  slave  or  slaves  shall  be  made 
by  testament  or  other  act  of  last  will,  the  formalities  or  conditions  pre- 
scribed by  the  third  and  fifth  sections  of  this  act  shall  be  fulfilled  by 
the  testamentary  executors,  administrators,  heirs  or  representatives  of 
the  testator. 

^  7.  All  the  provisions  of  any  law  in  force  in  this  territory,  be,  and 
the  same  are  hereby  repealed,  in  every  thing  which  they  may  contain, 
contrary  to  the  provisions  of  the  present  act. 

^  8.  This  act  shall  commence  and  be  in  force  from  and  after  the 
first  day  of  September  next,  and  not  before,  except  the  first  section 
thereof,  which  shall  be  in  force  from  and  after  the  passage  of  this  act. 

Stat.  3lst  January^  1827,  p.  13. — §  1.  Every  person  desiring  to 
emancipate  a  slave  who  shall  not  have  attained  the  age  of  thirty  years, 
prescribed  by  the  18r)th  article  of  the  Civil  Code,  shall  be  bound  to  pre- 
sent to  the  parish  judge,  of  the  parish  wherein  such  person  shall  reside, 
a  petition  in  which  lie  or  she  shall  explain"  the  motives  which  induce 
him  to  wish  the  emancipation  of  said  slave  ;  which  petition  shall  be  sub- 
mitted by  the  said  parish  judge  to  the  police  jury  at  their  next  meeting, 
and  if  throe-fourths  of  the  members  elected  of  the  said  police  jury  to- 
gether with  the  parish  judge  be  of  opinion  that  the  motives  arc  suffi 


52  OF  MASTER  AND  SERVANT. 

cient  to  allow  the  said  emancipation  (wliicli  sliall  be  certified,  in  tlie 
manner  and  form  requisite  for  the  other  deliberations  of  police  juries), 
the  petitioner  shall  be  authorized  to  proceed  to  the  formalities  required 
by  the  Civil  Code,  although  his  or  her  slave  has  not  attained  the  age  of 
thirty  years. 

^  2.  Nothing  contained  in  the  present  act  shall  be  so  construed  as 
to  dispense  the  owner  of  any  slave  with  the  formalities  prescribed  by 
the  existing  laws. 

§  3.  From  and  after  the  passing  of  this  act,  no  slave  shall  be  eman 
cipated  under  its  provisions  unless  said  slave  be  a  native  of  the  State. 

Stat.  16th  March,  1842,  p.  316,  §  14. — All  statti  liberi  now  in  the 
State  shall,  when  they  become  free,  be  transported  out  of  the  State  at 
the  expense  of  the  last  owner,  by  proceeding  before  the  parish  judge  at 
the  suit  of  any  citizen,  and  such  statu  liberi,  when  transported  out  of 
the  State,  shall,  on  returning  into  the  State,  be  liable  to  all  the  penal- 
ties provided  by  law  against  free  negroes  or  persons  of  color  coming 
into  the  State. 

Stat.  9th  April,  1847,  p.  81,  ^  1. — All  the  duties  heretofore  im- 
posed on  the  parish  judges  by  the  laws  of  this  State  in  connection  with 
police  juries,  shall  hereafter  be  performed  by  the  president  of  said  po- 
lice juries,  if  not  otherwise  provided  for  by  law. 

IK.  359;  8E.4S4;  5E.200;   3A.556;  5  A.  593 ;  soe  14  L.  441. 

Art.  186. — The  slave  who  has  saved  the  life  of  his  master,  his 
master's  wife,  or  one  of  his  children,  may  be  emancipated  at  any  age. 

See  amendment  to  Art  184  ;  5  E.  200. 

Art.  187. — The  master  who  wishes  to  emancipate  his  slave,  is 
bound  to  make  a  declaration  of  his  intentions  to  the  judge  of  the  par- 
ish where  he  resides ;  the  judge  must  order  notice  of  it  to  be  published 
during  forty  days  by  advertisement  posted  at  the  door  of  the  court- 
house ;  and  if,  at  the  expiration  of  this  delay,  no  opposition  be  made- 
he  shall  authorize  the  master  to  pass  the  act  of  emancipation. 

5  E.  200 ;  See  amendments  to  Art.  185. 

Art.  188. — The  act  of  emancipation  imports  an  obligation  on  the 
part  of  the  person  granting  it,  to  provide  for  the  subsistence  of  the 
slave  emancipated,  if  he  should  be  unable  to  support  himself. 

5  E.  200. 

Art.  1 89. — An  emancipation  once  perfected,  is  irrevocable,  on  the 
part  of  the  master  or  his  heirs. 

5  E.  200. 

Art.  190. — Any  enfranchisement  made  in  fraud  of  creditors,  or  of 
the  portion  reserved  by  law  to  forced  heirs,  is  null  and  void ;  and  such 
fraud  shall  be  considered  as  proved,  when  it  shall  appear  that  at  the 
moment  of  executing  the  enfranchisement  the  person  granting  it  had 
not  sufficient  property  to  pay  his  debts  or  to  leave  to  his  heirs  the  por- 
tion to  them  reserved  by  law ;  the  same  rule  will  apply  if  the  slave 
thus  manumitted  was  specially  mortgaged  ;  but  in  this  case  the  enfran- 
chisement shall  take  effect,  provided  the  slave  or  any  one  in  his  behsuf 
shall  pay  the  debt  for  which  the  mortgage  was  given. 

3  A.  100;  4  A.  365. 


•^-  OF  FATHER  AND  CHILD.  .  33 

Art.  191.— No  master  of  slaves  shall  be  compelled,  either  directly 
or  indirectly,  to  enfi-anchise  any  of  them,  except  only  in  cases  where  the 
enfranchisement  shall  be  made  for  services  rendered  to  the  State  by 
virtue  of  an  act  of  the  Legislature  of  the  same,  and  on  the  State  satis- 
fying to  the  master  the  appraised  value  of  the  manumitted  slave 

Art.  192.— In  like  manner  no  master  shall  be  compelled  to  sell  his 
slave,  but  m  one  or  two  cases,  to  wit :  the  first,  when  being  only  cc 
pioprietor  of  the  slave,  his  co-proprietor  demands  the  sale  in  order 
to  make  partition  of  the  property;  the  second,  when  the  master  shall 
be  convicted  of  cruel  treatment  of  his  slave,  and  the  jud^e  shall  deem 
proper  to  pronounce,  besides  the  penalty  established*^  for%uch  cases 
that  the  slave  shall  be  sold  at  public  auction,  in  order  to  place  him  out 
of  the  reach  of  the  power  which  his  master  has  abused. 


2  L.  5S1. 


Art.  193.— The  slave  who  has  acquired  the  right  of  beino-  free  at 
a  future  time,  is  from  that  time  capable  of  receiving  by  testlunent  or 
donation.     Property  given  or  devised  to  him  must  be  Vsorve"  for 

sSl  Hk^     1        -'J'^Tr^  *°  ^'^'  '''  kind,  when  his  emancipation 
shall  take  place.      In  the  mean  time  it  must  be  administered    by  a 


1  A.  32 ;  3  A.  467. 


Art   194.— The  slave  for  years  cannot  be  transported  out  of  the 
btate.     He  can  appear  in  court  to  claim  the  protection  of  the  laws  in 

1  A.  32 ;  Soo  9  L.  48S. 

Art._  195.— If  the  slave  for  years  dies  before  the  time  fixed  for  his 

1  A.  32. 

•  ^'t'^T■L^^^^T'^^'^  ""^'^^  ^^""^  °^  ^  ^«"i^"  after  she  has  acquired  the 
right  of  being  free  at  a  future  time,  follows  the  condition  of  its  mother 
and  becomes  free  at  the  time  fixed  for  her  enfranchisement,  evenTf  the 
mother  should  die  before  that  time. 

1  A.  32 ;  See  S  M.  218. 


TITLE  VII. 

OF    FATHER    AND    CHILD. 
CHAPTER  I. 

OF    CHILDREN    IN    GENERAL. 

Art.  197.— Children  are  either  legitimate  or  illegitimate.    ' 

See  14  L.  542. 

themJriago:""^'^'""""'   '"'"'^'■"  "'  *""'  "'"'  ""'  '"'"  during 
.i.™"'''  '99— I"<=gi'™a'e  children  are  tliosewho  are  born  out  of  mar- 
3 


34  OF  FATHER  AND  CHILD. 

Art.  200. — There  are  two  sorts  of  illegitimate  children. 

Those  who  are  born  from  two  persons,  who,  at  the  moment  when 
such  children  were  conceived  might  have  legally  contracted  marriage 
with  each  other  ;  and  those  who  are  born  from  persons  to  whose  mar- 
riage there  existed  at  the  time  some  legal  impediment. 

Seo  Art.  222 ;  14  L.  543. 

Art.  201. — Adulterous  bastards  are  those  produced  by  an  unlawful 
connection  between  two  persons,  who,  at  the  time  when  the  child  was 
conceived,  were,  either  of  them  or  both,  connected  by  marriage  with 
some  other  person. 

Seo  14  L.  542. 

Art.  202. — Incestuous  bastards  are  those  who  are  produced  by  the 
illegal  connection  of  two  persons  who  are  relations  within  the  degrees 
prohibited  by  law. 

Seo  14  L.  542. 


CHAPTEK  II. 


OF    LEGITIMATE    CHILDREN. 

Section  I. — Of  Legitimacy  resulting  fro^n  Marriage. 

Art.  203. — The  law  considers  the  husband  of  the  mother  as  the 
father  of  all  children  conceived  during  the  marriage. 

1  E.  581 ;  7  N.  S.  548. 

Art.  204. — The  husband  cannot,  by  alleging  his  natural  impotence, 
disown  the  child,  he  cannot  disown  it  even  for  cause  of  adultery,  unless 
its  birth  has  been  concealed  from  him,  in  which  case  he  will  be  permit- 
ted to  prove  that  he  is  not  its  father. 

Art.  205. — The  child  capable  of  living,  which  is  born  before  the  one 
hund*-ed  and  eightieth  day  after  the  marriage,  is  not  presumed  to  be  the 
child  of  the  husband  :  every  child  born  alive  more  than  six  months  after 
conception,  is  presumed  to  be  capable  of  living. 

Art.  206. — The  same  rule  applies  with  respect  to  the  child  born 
three  hundred  days  after  the  dissolution  of  the  marriage,  or  after  the 
sentence  of  separation  from  bed  and  board. 

Art.  207. — The  legitimacy  of  the  child  born  three  hundred  days 
after  the  separation  from  bed  and  board  has  been  decreed,  may  be  con- 
tested, unless  it  be  proved  that  there  had  been  cohabitation  between 
tlie  husband  and  wife  since  such  decree,  because  it  is  always  presumed 
that  the  parties  have  obeyed  the  sentence  of  separation. 

But  in  case  of  voluntary  separation,  cohabitation  is  always  presumed, 
unless  the  contrary  be  proved. 

Art.  208. — The  presumption  of  paternity  as  an  incident  to  the  mar- 
riage is  also  at  an  end,  when  the  remoteness  of  the  husband  from  the 
wife  has  been  such  that  co-habitation  has  been  physically  impossible. 

Art.  209. — The  husband  cannot  contest  the  legitimacy  of  the  child 
born  previous  to  the  one  hundred  and  eightieth  day  of  marriage,  in  the 
following  cases : 


35  OF  FATHER  AND  CHILD.  35 

1.  If  he  was  acquainted  with  the  circumstance  of  his  wife  heiug  preg- 
nant previously  to  the  marriage ; 

2.  If  he  was  present  at  the  registering  of  the  birth  or  baptism  of  the 
child  and  signed  the  same,  or  if  not  knowing  how  to  sign,  he  has  put  his 
ordinary  mark  to  it,  in  presence  of  two  witnesses. 

6  A.  242. 

Art.  210. — In  all  the  cases  above  enumerated,  where  the  presump- 
tion of  paternity  ceases,  the  father,  if  he  intends  to  dispute  the  legiti- 
macy of  the  child,  must  do  it  within  one  month,  if  he  be  in  the  place 
where  the  child  is  born,  or  within  two  months  after  his  return,  if  he  be 
absent  at  that  time,  or  within  two  months  after  the  discovery  of  the 
fraud,  if  the  birth  of  the  child  was  concealed  from  him,  or  he  shall  be 
barred  from  making  any  objection  to  the  legitimacy  of  such  child. 

1  E.  5S1 ;  6  A.  242. 

Art.  21 1. — If  the  husband  die  without  having  made  such  objection, 
but  before  the  expiration  of  the  time  directed  by  law,  two  months  shall 
be  granted  to  his  heirs  to  contest  the  legitimacy  of  the  child,  to  be 
counted  from  the  time  when  the  said  child  has  taken  possession  of  the 
estate  of  the  husband,  or  when  the  heirs  shall  have  been  disturbed  by 
the  child  in  their  possession  thereof 

6  A.  242. 

Section  II. — Of  the  maimer  of  jit'oving  legitimate  filiation. 

Art.  212. — The  filiation  of  legitimate  children  may  be  proved  by  a 
transcript  from  the  register  of  birth  or  baptism,  kept  agreeably  to  law 
or  to  the  usages  of  the  country. 

See  14  L.  542. 

Art.  213. — If  the  register  of  births  and  baptisms  is  lost,  or  if  no 
such  register  has  been  kept,  it  suffices  for  the  child  to  show  that  he  has 
been  constantly  considered  as  a  child  born  during  marriage. 

See  11  L.  128. 

Art.  214. — The  being  considered  in  this  capacity  is  proved  by  a 
sufficient  collection  of  facts  demonstrating  the  connection  of  filiation  and 
paternity  which  exists  between  an  individual  and  the  family  to  which  he 
belongs. 

The  most  material  of  these  facts  are  : 

That  such  individual  has  always  been  called  by  the  surname  of  the 
father  from  whom  he  pretends  to  be  born ; 

That  the  father  treated  him  as  his  child,  and  that  he  provided  as 
such  for  his  education,  maintenance  and  settlement  in  life ; 

That  he  has  constantly  been  acknowledged  as  such  in  the  world ; 

That  he  has  been  acknowledged  as  such  within  the  family. 

See  11  L.  128. 

Art.  215. — If  there  be  neither  register  of  birth  or  baptism,  nor  this 
general  reputation,  or  if  the  child  has  been  registered  under  a  false 
name,  or  as  born  of  unknown  parents,  also  if  tlie  child  has  been  exposed 
or  abandoned,  or  if  his  condition  has  been  suppressed,  tlie  proof  of  his 
legitimate  filiation  may  be  made  either  by  written  or  oral  evidence. 

Art.  216. — Proof  against  the  legitimate  filiation  may  be  made  by 
evidence  that  the  plaintifi"  is  not  the  child  of  the  mother  whom  he  pre* 


36  OF  FATHER  AND  CHILD. 

tends  to  be  his,  and  the  maternity  being  proved,  that  he  is  not  the  child 
of  the  husband  of  the  mother 


CHAPTER  III. 

OF    ILLEGITIMATE    CHILDREN. 

Section  I. —  Of  Legitimation. 

Art,  217. — Children  born  out  of  marriage,  except  those  who  are 
born  from  an  incestuous  or  adulterous  connection,  may  be  legitimated 
by  the  subsequent  marriage  of  their  father  and  mother,  whenever  the 
latter  have  legally  acknowledged  them  for  their  children,  either  before 
their  marriage  or  by  their  contract  of  marriage  itself. 

Every  other  mode  of  legitimating  children  is  abolished. 

Stat.  2ith  March,  1831,  p.  86. — ^  1.  So  much  of  the  article  two 
hundred  and  seventeen  of  the  Civil  Code  as  abolishes  all  other  modes  of 
legitimation,  except  that  by  marriage,  be,  and  the  same  is,  hereby  re- 
pealed, and  that  law  seventh,  title  fifteenth,  of  the  fourth  Partidas,  which 
was  repealed  by  the  said  article  of  the  Civil  Code,  be,  and  the  same  is, 
hereby  revived  ;  and  that  natural  fathers  or  mothers  shall  have  the 
power  to  legitimate  their  natural  children,  by  acts  declaratory  of  their 
intention,  made  before  a  notary  and  two  witnesses  :  Provided,  That 
nothing  herein  contained  shall  be  so  construed  as  to  enable  a  white  pa- 
rent to  legitimate  a  colored  child,  nor  to  prevent  a  free  person  of  color 
to  legitimate  his  colored  children  :  Provided,  The  natural  children  are 
the  issue  of  parents  who  might,  at  the  time  of  conception,  have  con- 
tracted marriage :  A7id  Provided,  That  there  do  not  exist,  on  the  part 
of  the  parent,  legitimating  his  natural  offspring,  ascendants,  or  legiti- 
mate descendants.* 

Art.  2 1 8. — Legitimation  may  even  be  extended  to  deceased  chil- 
dren who  have  left  issue,  and  in  that  case  it  enures  to  the  benefit  of  such 
issue. 

See  11  L.  128. 

*  Law  seventh,  title  fifteenth,  fourth  Partidas.  Ist  Moreau  and  Carlton's  Par- 
tidas, p.  551. 

In  what  manner  fathers  may  legitimate  tJteir  children  by  written  instrument  {carta.) 

Another  way  of  legitimating  natural  children  is,  where  a  father  declares  by  a 
writing,  executed  by  his  own  hand,  or  which  he  causes  to  be  executed  by  a  notaiy 
public,  and  attested  by  three  witnesses,  that  he  acknowledges  snch  a  one  for  his 
son,  designating  him  expressly  by  name.  But  in  such  acknowledgment  the  father 
ought  not  to  say  he  is  his  natural  son ;  for,  if  he  does,  the  legitimation  will  have 
no  effect.  Likewise,  where  a  man  has  several  children  by  a  concubine  (amiya), 
and  he  acknowledge  one  of  them  only  in  writing,  in  the  manner  above  mentioned ; 
by  such  acknowledgment,  the  other  brothers  and  sisters  will  be  legitimated,  though 
no  mention  be  made  of  them,  so  far  as  to  enable  them  to  inherit  the  estate  of  their 
father,  as  effectually  as  the  one  whose  name  is  mentioned  in  the  writing.  And 
what  we  say  in  this  and  the  preceding  laws,  is  to  be  so  understood  that  they  who 
are  therein  mentioned  as  being  legitimated,  can  inherit  both  the  estates  of  their 
fathers  and  other  relations ;  except,  however,  the  child  who  is  legitimated  in  the 
manner  mentioned  in  the  next  law,  when  he  goes  in  person  and  offers  himself  for 
She  service  of  the  Emperor  or  King :  for  such  a  child  can  inherit  the  estate  of  hia 
father  only,  and  not  that  of  his  other  relations,  if  they  die  intestate. 


37  OF  FATHER  AND  CHILD.  37 

Art.  219. — Children  legitimated  by  a  subsequent  marriage  have  the 
same  rights  as  if  they  were  born  during  marriage. 

See  11  L.  128 ;  3  R.  441. 

Section  II. — Of  tlic  AcJoioicledgment  of  Illegitimate  Children. 

Art.  220. — Illegitimate  children  who  have  been  acknowledged  by 
their  father,  are  called  natural  children ;  and  those  whose  father  is  un- 
known, are  contra-distinguished  by  the  appellation  of  bastards. 

Art.  221. — The  acknowledgment  of  an  illegitimate  child  shall  be 
made  by  a  declaration  executed  before  a  notary  public,  in  presence  of 
two  witnesses,  whenever  it  shall  not  have  been  made  in  the  registering 
of  the  birth  or  baptism  of  such  child. 

No  other  proof  of  acknowledgment  shall  be  admitted  in  favor  of  chil- 
dren of  color. 

6  L.  500 ;  11  L.  12S ;  4  A.  805 ;  6  A.  158, 161 ;  12  R.  56,  552 ;  See  14  L.  542. 

Art.  222. — Such  acknowledgment  shall  not  be  made  in  favor  of  the 
children  produced  by  an  incestuous  or  adulterous  connection. 

12  r.  56. 

Art.  223. — The  acknowledgment  made  by  the  father  without  the 
concurrence  or  consent  of  the  mother,  shall  have  eifect  only  with  respect 
to  the  father. 

Art.  224. — Illegitimate  children,  though  duly  acknowledged,  cannot 
claim  the  rights  of  legitimate  children.  The  rights  of  natural  children 
are  regulated  under  the  title  of  successions. 

See  3  R.  441. 

Art.  225. — Every  claim,  set  up  by  natural  children,  may  be  con- 
tested by  those  who  have  any  interest  therein. 

Art.  226. — Illegitimate  children,  who  have  not  been  legally  ac- 
knowledged, may  be  allowed  to  prove  their  paternal  descent,  provided 
they  be  free  and  white. 

6  L.  5C0 ;  12  R.  56;  6  A.  158,  161 ;  See  14  L.  542. 

Free  illegitimate  children  of  color,  may  also  be  allowed  to  prove 
their  descent  from  a  father  of  color  only. 

Art.  227. — In  the  ease  where  the  proof  of  natural  paternal  descent 
is  authorized  by  the  preceding  article,  the  proof  may  be  made  in  either 
of  the  following  ways  : 

1.  By  all  kinds  of  private  writings,  in  which  the  father  may  have 
acknowledged  the  bastard  as  his  child,  or  may  have  called  him  so ; 

2.  When  the  father,  either  in  public  or  in  private,  has  acknowledged 
him  as  his  child,  or  has  called  him  so  in  conversation,  or  has  caused  him 
to  be  educated  as  such ; 

3.  When  tlie  mother  of  the  child  was  known  as  living  in  a  state  of 
concubinage  with  the  father,  and  resided  as  such  in  his  house  at  the 
time  when  the  child  was  conceived. 

6  L.  560 ;  5  A.  250 ;  6  A.  120, 156.;   See  4  L.  175. 

Art.  228. — The  oath  of  the  mother,  supported  by  proof  of  the  co- 
habitation of  tlio  reputed  father  with  her,  out  of  his  house,  is  not  suffi- 
pient  to  establish  natural  paternal  descent,  if  the  mother  be  known  as  a 


38  OF  FATHER  AND  CHILD. 

woman  of  dissolute  manners,  or  as  having  had  an  unlawful  connectior 
with  one  or  more  men,  other  than  the  man  whom  she  declares  to  be  the 
father  of  the  child,  either  before  or  since  the  birth  of  the  child. 

Art.  229. — In  case  of  rape,  whenever  the  time  of  such  rape  shall 
agree  with  the  time  of  conception,  the  ravisher  may,  at  the  suit  of  the 
parties  concerned,  be  declared  to  be  the  father  of  the  child. 

Art.  230. — Illegitimate  children  of  every  description  may  make 
proof  of  their  natural  matex*nal  descent,  provided  the  mother  be  not  a 
married  woman. 

But  the  child  who  will  make  such  proof  shall  be  bound  to  show  that 
he  is  identically  the  same  person,  as  the  child  whom  the  mother  brought 
forth. 

6L.  560;  4  A.  305. 

Art.  231. — The  foundling,  whom  persons  from  charity  have  received 
and  brought  up,  cannot  be  claimed  by  its  father  and  mother,  unless 
they  prove  that  the  child  was  taken  from  them  by  force,  fraud  or  acci- 
dent. 

No  other  relation  can  claim  a  foundling  without  having  first  ob- 
tained the  tutorship  or  curatorship  of  the  foundling,  and  given  security 
in  a  sum  sufficient  for  the  reimbursement  of  the  expenses  which  it  has 
incurred. 

CHAPTER  IV. 

OF    ADOPTION. 

Art.  232. — Adoption  which  was  authorized  by  the  laws  heretofore 
in  force,  shall  be  and  is  hereby  abolished. 

See  4  L.  423. 


CHAPTER  V. 

OF    PATERNAL    AUTHORITY. 

Sec.  I. — Of  the  Duties  of  Parents  towards  their  legitimate  Children^ 
and  of  the  Duties  of  legitimate  Childre?v  toivards  their  Parents. 

Art.  233. — A  child,  whatever  be  his  age,  owes  honor  and  respect 
to  his  father  and  mother. 

Art.  234. — A  child  remains  under  the  authority  of  his  father  and 
mother  until  his  majority  or  emancipation. 

In  case  of  difference  between  the  parents,  the  authority  of  the  father 
prevails. 

12  E.  172;  2  A.  293;  6  L.  363. 

Apv-T.  235. — As  long  as  the  child  remains  under  the  authority  of 
his  father  and  mother,  he  is  bound  to  obey  them  in  every  thing  which 
is  not  contrary  to  good  morals  and  the  laws. 

Art.  236. — A  child  under  the  age  of  puberty  cannot  quit  the  pater- 
nal house  without  the  permission  of  his  father  and  mother,  who  have  a 
right  to  correct  him,  provided  it  be  done  in  a  reasonable  manner. 


39  OF  FATHER  AND  CHILD.  39 

Art.  237. — The  father  and  mother  have  a  right  to  appoint  tutors  to 
their  chiklren,  as  is  directed  in  the  title  of  minors. 

Art.  238. — Fathers  and  mothers  may,  during  their  life,  delegate  a 
part  of  their  authority  to  teachers,  schoolmasters  and  others  to  whom 
they  intrust  their  children  for  their  education,  such  as  the  power  of  re- 
straint and  correction,  so  far  as  may  be  necessary  to  answer  the  pur- 
poses for  which  they  employ  them. 

They  have  also  the  right  to  bind  their  children  as  apprentices. 

Art.  239. — Fathers  and  mothers  shall  have,  during  marriage,  the 
enjoyment  of  the  estate  of  their  children,  until  their  majority  or  eman- 
cipation. 

lOL.  02;  12  E.  172;  3  A.  ISO 

Art.  240. — The  obligations  resulting  from  this  enjoyment  shall  be: 

1.  The  same  obligations  to  which  usufructuaries  are  subjected; 

2.  To  support,  to  maintain  and  to  educate  their  children  according 
to  their  situation  in  life. 

12  R.  172  ;  3  A.  294. 

Art.  241. — The  usufruct,  in  case  of  separation  from  bed  and  board, 
shall  take  place  in  toto,  in  favor  of  either  father  or  mother,  who  shall 
have  sued  for  such  separation,  and  shall  be  subjected  to  the  conditions 
prescribed  in  the  preceding  article. 

The  words  "sued/or''  should  bo  "ohtained."    Sco  French  text. 

Art.  242. — This  usufruct  shall  not  extend  to  any  estate,  which  the 
children  may  acquire  by  their  own  labor  and  industry,  nor  to  such  es- 
tate as  is  given  or  left  them  under  the  express  condition  that  the  father 
and  mother  shall  not  enjoy  such  usufruct. 

Art.  243. — Fathers  and  mothers,  by  the  very  act  of  marriage,  con- 
tract together  the  obligation  of  supporting,  maintaining,  and  educating 
their  children. 

3  A.  IS6. 

Art.  244. — A  child  has  no  right  to  sue  either  his  father  or  mother 
for  the  purpose  of  obtaining  a  marriage  settlement  or  other  advance- 
ment. 

Art.  245. — Children  are  bound  to  maintain  their  father  and  mother 
and  other  ascendants,  who  are  in  need;  and  the  relatives  in  the  direct 
ascending  line  are  likewise  bound  to  maintain  their  needy  descendants, 
this  obligation  being  reciprocal. 

They  are. also  bound  to  render  reciprocally  all  the  services  which 
their  situation  can  rciiuire,  if  they  should  become  insane. 

12E.  38");  3  A.1S6. 

Art.  246. — By  alimony  we  understand  what  is  necessary  for  the 
nourishment,  lodging  and  support  of  the  person  who  claims  it. 

It  includes  the  education,  when  the  person  to  wliom  the  alimony  is 
due  is  a  minor. 

12  E.  8S5. 

Art.  247. — Alimony  shall  be  granted  in  proportion  to  the  wants 
of  the  person  requiring  it,  and  the  circumstances  of  those  who  are  to 
pay  it. 

12  E  385. 

Art.  248. — When  tlie  person  who  gives  or  receives  alimony  is  re- 
placed in  such  a  situation  that  the  one  can  no  longer  give,  or  that  the 
other  is  no  longer  in  need  of  it,  the  circumstances  of  either  party  are 


40  OF  FATHER  AND  CHILD. 

materially  changed  ;  then  the  discharge  from  or  reduction  of  the  alimony 
may  be  sued  for  and  granted. 

Art.  249. — If  the  person,  whose  duty  it  is  to  furnish  alimony,  shall 
prove  that  he  is  unable  to  pay  the  same,  the  judge  may,  after  examining 
into  the  case,  order  that  such  person  shall  receive  in  his  house,  and  there 
support  and  maintain,  the  person  to  whom  he  owes  alimony. 

Art.  250. — The  judge  shall  pi-onounce  likewise  whether  the  father 
or  mother  who  may  oiFer  to  receive,  support  and  maintain  the  child,  to 
whom  he  or  she  may  owe  alimony,  in  his  or  her  house,  shall  be  dispensed 
in  that  case  from  the  obligation  of  paying  for  it  elsewhere. 

9  M.  C43. 

Art.  251. — Fathers  and  mothers  owe  protection  to  their  children, 
and  of  course  they  may,  as  long  as  their  children  are  under  their  au- 
thority, appear  for  them  in  court  in  every  kind  of  civil  suit,  in  which 
they  may  be  interested,  and  they  may  likewise  accept  any  donation  made 
to  them. 

Art.  252. — Fathers  and  mothers  may  justify  themselves  in  an  action 
begun  against  them  for  assault  and  battery,  if  they  have  acted  in  defence 
of  the  persons  of  their  children. 

Art.  253. — Fathers  and  mothers  are  answerable  for  the  offences  or 
quasi-offences  committed  by  their  children,  in  the  cases  prescribed  under 
the  title  of  quasi-contracts  and  quasi-crimes  or  offences. 

Section  II. — Of  the  Duties  of  Parents  towards  their  Natural  Children, 
and  of  the  Duties  of  Natural  Children  towards  their  Parents. 

Art.  254. — Bastards,  generally  speaking,  belong  to  no  family,  and 
have  no  relations ;  accordingly  they  are  not  submitted  to  the  paternal 
authority,  even  when  they  have  been  legally  acknowledged. 

7N.  S.  38T;  See  14  L.  542. 

Art.  255. — Nevertheless  nature  and  humanity  establish  certain  re- 
ciprocal duties  between  fathers  and  mothers,  and  their  natural  children. 

Art.  256. — Fathers  and  mothers  owe  alimony  to  their  natural  chil- 
dren, when  they  are  in  need ; 

And  natural  children  owe  likewise  alimony  to  their  father  and  mo- 
ther, if  they  are  in  need,  and  if  they  themselves  have  the  means  of  pro- 
viding it. 

Art.  257. — Natural  children  have  a  right  to  claim  this  alimony,  not 
only  from  their  father  and  mother,  but  even  from  their  heirs  after  their 
death. 

See  3  E.  441. 

Art.  258. — But  in  order  that  they  may  have  a  right  to  sue  for  this 
alimony,  they  must : 

1.  Have  been  legally  acknowledged  by  both  their  father  and  mother, 
or  by  either  of  them  from  whom  they  claim  alimony  ;  or  they  must  have 
been  declared  their  natural  children  by  a  judgment  duly  pronounced,  in 
cases  in  which  they  may  be  admitted  to  prove  their  paternal  or  maternal 
descent ; 

2.  They  must  prove  in  a  satisfactory  manner  that  they  stand  abso- 
lutely in  need  of  such  alimony  for  their  support. 

6  A.  159  ;  See  14  L.  542. 


41  OF  MINORS  AND  THEIR  TUTORSHIP.  41 

Art.  259. — Although  alimony  must  be  proportioned  generally  -n^ith 
the  wants  of  the  person  claiming  and  with  the  resources  of  the  person 
owing  the  same,  nevertheless  that  allowed  to  the  natural  children  of 
color  shall  never  exceed  what  is  absolutely  necessary  to  ensure  them 
their  board  and  lodging,  and  to  enable  them  to  learn  to  read  and  write, 
and  a  trade. 

Art.  260. — The  obligation  of  giving  such  alimony  ceases,  when  the 
natural  child  is  able  to  earn  his  subsistence,  by  labor,  or  whenever  his 
father  or  mother  have  caused  him  to  be  instructed  in  an  art,  trade  or 
profession  fit  to  procure  him  a  sufiicient  livelihood,  unless  some  con- 
tinual sickness  or  infirmity  prevents  such  child  from  working  for  his  sub- 
gistence. 

This  debt  of  alimony  ceases  likewise  to  be  due  from  the  estate  of 
the  natural  father  or  mother,  whenever  cither  of  them  has  provided 
during  his  or  her  life  a  sufiicient  maintenance  for  his  or  her  natural 
child,  or  have  made  to  him  donations  or  other  advantages  which  may  be 
sufficient  for  that  purpose. 

5  A.  260. 

Art.  261. — The  other  rules  established  respecting  alimony  to  be 
granted  to  legitimate  children  take  place  likewise  with  respect  to  natu- 
ral children,  except  so  far  as  they  may  be  contrary  to  the  foregoing 
provisions. 

Art.  262. — Alimony  is  due  to  bastards,  though  they  be  adulterous 
and  incestuous,  by  the  mother  and  her  ascendants. 


TITLE  VIII. 

OF  MNORS,  OF  THEIR  TUTORSHIP,  CURATORSHIP  AND  EMANCIPATION. 

CHAPTER  I. 

OF   TUTORSHIP. 

Section  I. —  General  Disjwsitions. 

Art.  263. — The  minor,  that  is,  the  male  wlio  has  not  arrived  to  the 
full  age  of  fourteen  years,  and  the  female  who  has  not  arrived  to  the  full 
age  of  twelve  years,  are  both,  as  to  their  person  and  tlicir  estate,  placed 
under  the  authority  of  a  tutor. 

Above  that  age,  and  until  their  majority  or  emancipation,  tlicy  are 
placed  under  the  authority  of  a  curator. 

After  the  word  "minor"  tli«  words  "vncJer  the  age  of  j'tiiherti/"  should  bo  inserted. 
See  Frencli  text. 

Art.  264. — There  are  four  sorts  of  tutorships  : 

Tutorship  by  nature ; 

Tutorship  by  will ; 

Tutorsliip  by  the  cff'ect  of  the  law  ; 

Tutorship  by  the  appointment  of  the  judge. 


42  OF  MINORS  AND  THEIR  TUTORSHIP. 

Art.  265. — Tutorship  by  nature  takes  place  of  right ;  every  other 
kind  of  tutorship  must  either  be  confirmed,  or  given  by  the  judge. 

12  E.  636;  See  T  L.  539. 

Art.  266. — For  every  sort  of  tutorship  the  tutor  is  accountable. 


Section  II. — Of  Tutor shi}}  by  Nature. 

Art.  267. — The  father  is,  during  the  marriage,  administrator  of  the 
estate  of  his  minor  children. 

He  is  accountable  both  for  the  property  and  revenues  of  the  estates, 
the  use  of  which  he  is  not  entitled  to  by  law,  and  for  the  property  only 
of  the  estates,  the  usufruct  of  which  the  law  gives  him. 

This  administration  ceases  at  the  time  of  the  majority  or  emancipa- 
tion of  the  children. 

12  K.  1T2  ;  3  A.  610 ;  See  6  L.  363. 

Art.  268. — After  the  dissolution  of  marriage  by  the  death  of  either 
husband  or  wife,  the  tutorship  of  the  minor  children  belongs  of  right  to 
the  surviving  mother  or  father ; 

This  is  what  is  called  tutorship  by  nature. 

7  L.  539 ;  3  A.  5S2 ;  Sec  T  N.  8.  SST ;  9  K.  198 ;  12  R.  885,  636. 

Art.  269. — Tutors  by  nature  are  bound  to  cause  an  inventory  to  be 
made,  and  an  under  tutor  to  be  appointed,  but  they  are  not  compelled 
to  give  security. 

Art.  270. — If  at  the  time  of  the  death  of  the  husband,  the  wife  shall 
be  pregnant,  a  curator  shall  be  appointed  to  the  unborn  child ;  and  at 
the  birth  of  that  posthumous  child,  such  cvirator  shall  be  of  right  the 
under  tutor. 

Art.  271. — The  mother  is  not  compelled  to  accept  the  tutorship  of 
her  minor  children,  but  in  case  she  refuses,  she  shall  be  bound  to  fulfil 
the  duties  of  a  tutor,  until  she  has  caused  a  tutor  to  be  appointed. 

The  mother,  who  refuses  the  tutorship  of  her  children,  retains  the 
superintendence  of  them,  and  the  care  of  their  education.  The  tutor, 
in  such  a  case,  is  merely  intrusted  with  what  concerns  the  administra- 
tion of  their  property. 

T  L.  539,  271';  See  9  E.  19S. 

Art.  272. — If  the  mother,  who  is  tutrix  to  her  children,  wishes  to 
marry  again,  she  must,  previous  to  the  celebration  of  the  marriage,  apply 
to  the  judge  in  order  to  have  a  meeting  of  the  family  called  for  the 
pupose  of  deciding  whether  she  shall  remain  tutrix. 

If  she  shall  neglect  to  call  such  a  meeting,  she  shall  be  ijoso  facto 
deprived  of  the  tutorship,  and  together  with  her  husband  shall  be  answer- 
able in  solidmn  for  all  the  consequences  of  the  mal-administration  of 
the  tutorship  un(iuly  kept  by  her,  and  the  estate  of  the  husband  shall 
be  tacitly  mortgaged  as  a  security  for  that  responsibility  from  the  day 
of  the  celebration  of  the  last  marriage. 

2  A.  401 ;  10  L.  452. 

Art.  273. — When  the  meeting  of  the  family  shall  retain  the  mother 
in  the  tutorship,  her  second  husband  becomes  of  necessity  the  co-tutor, 


43  OF  MINORS  AND  THEIR  TUTORSHIP.  43 

who  for  the  administration  of  the  property,  subsequently  to  his  marriage 
becomes  bound  jointly  with  his  wife. 

Sec  9  R.  198. 

Art.  274.— The  father  is  of  right  the  tutor  of  his  natural  child  ac- 
knowledged by  him.  The  mother  is  of  right  the  tutrix  of  her  natural 
child  not  acknowledged  by  the  father. 

The  natural  child,  acknowledged  by  both,  has  for  tutor,  first  the 
father,  in  default  of  him,  the  mother. 

Section  111.— Of  the  Tutorship  by  Will. 

Art.  275. — The  right  of  appointing  a  tutor,  whether  a  relation  or 
a  stranger,  belongs  exclusively  to  the  surviving  father  or  mother. 

This  tutorship  is  called  testamentary  tutorship,  because  generally  it 
is  given  by  testament,  but  it  may  likewise  be  given  by  any  declaration 
by  the  surviving  father  or  mother,  executed  before  a  notary  and  two 
witnesses. 

Art.  276. — The  mother,  who  is  married  again,  and  who  is  not  main- 
tained in  the  tutorship  of  the  children  of  her  preceding  marriage  or  mar- 
riages, has  no  right  to  appoint  a  tutor  to  them. 

Art.  277. — The  tutor  by  will  is  not  compelled  to  accept  the  tutor- 
ship to  which  he  is  appointed  by  the  father  or  mother,  if  there  are 
relations  of  the  minors  entitled  by  law  to  the  tutorship  in  preference 
to  him. 

But  if  he  refuses  the  tutorship,  he  loses  in  that  case  all  the  legacies 
and  other  advantages,  which  the  person  who  appointed  him  may  have 
made  in  his  favor  under  a  persuasion  that  he  would  accept  this  trust. 

Art.  278. — The  judge  may  refuse  to  confirm  the  tutorship  given 
by  the  surviving  father  or  mother,  if  he  deems  it  conducive  to  the  in- 
terest of  the  minor,  provided  it  be  by  and  with  the  advice  of  the  assem- 
bly of  the  family. 

And  in  this  case  a  tutor  is  appointed  to  the  minor  agreeably  to  the 
rules  hereafter  prescribed. 

Art.  279. — The  father  or  mother  of  the  natural  child  acknowledged 
by  either  of  them,  can  choose  a  tutor  for  him,  whose  appointment,  to'^be 
valid,  must  be  approved  by  the  judge. 

Art.  280. — If  the  parent,  who  died  last,  has  appointed  several  tutors 
to  the  children,  the  person  first  mentioned  shall  be  alone  charged  Avith 
the  tutorship,  and  the  second  shall  not  be  called  to  it,  except  in  case  of 
the  death,  absence,  incapacity  or  displacing  of  the  first,  and  in  like  man- 
ner as  to  the  others  in  succession. 

Section  IV.— 0/  the  Tutorship  by  the  Effect  of  the  Law. 

Art.  28 1 . — When  a  tutor  has  not  been  appointed  to  the  minor  by  the 
surviving  father  or  mother,  or  if  such  tutor  having  been  appointed,  has 
not  been  confirmed  or  has  been  excused,  then  the  judge  ought  to 
appoint  to  the  tutca-ship  the  nearest  ascendant  in  the  direct  line  of  the 
minor. 

CN.  S  iSA\  10  L.  540;  3  R.  390. 


44  OF  MINORS  AND  THEIR  TUTORSHIP. 

Art.  282. — In  ease  there  shall  be  more  than  one  ascendant  in  tha 
same  degree,  in  the  direct  line,  but  of  different  sexes,  the  tutorship  shall 
be  given  to  the  male. 

8  E.  890. 

Art.  283. — In  case  there  shall  be  more  than  one  ascendant  in  the 
same  degree,  in  the  direct  line,  and  of  the  same  sex,  the  judge  shall 
appoint  one  of  them  as  tutor  by  and  with  the  advice  of  the  meeting  of 
the  family. 

3  R.  890. 

Art.  284. — The  grandmother  of  the  minor  is  the  only  woman  who 
has  a  right  to  claim  the  tutorship  by  the  effect  of  the  law,  but  she  is  not 
compelled  to  accept  it. 

Art.  285. — In  case  the  minor  has  no  ascendant  in  the  direct  line, 
the  legal  tutorship  shall  be  given  to  the  nearest  of  kin  in  the  collateral 
line,  who  comes  immediately  after  the  presumptive  heir  or  heirs  of  the 
minor. 

And  if  there  are  two  or  more  relations  in  the  same  degree  after  the 
presumptive  heir  or  heirs  of  the  minor,  the  judge  shall  appoint  one  of 
them  by  and  with  the  advice  of  the  meeting  of  the  family. 

Art.  286. — The  relation  even  in  the  fourth  degree  inclusively,  who 
refuses  to  take  charge  of  the  tutorship,  is  responsible  to  the  minor  for 
all  losses  and  damages  which  may  result  therefrom. 

Art.  287. — Under  the  name  relation  are  not  included  connections 
by  affinity. 

Sec.  V. —  Of  Dative  Tutorship. 

Art.  288. — When  a  minor  is  an  orphan,  and  has  no  tutor  appointed 
by  his  father  or  mother,  nor  any  relations  who  may  claim  the  tutorship 
by  the  effect  of  the  law,  or  when  the  tutor  appointed  in  some  of  the 
modes  above  expressed  is  liable  to  be  excluded  according  to  the  rules 
hereafter  established,  or  is  excused  legally,  in  such  cases  the  judge  shall 
appoint  a  tutor  to  the  minor,  by  and  with  the  advice  of  the  meeting  of 
the  family. 

Stat.  \^th  March,  1834,  p.  113. — ^  4.  Whenever  it  shall  occur  that 
no  one  will  take  upon  himself  the  tutorship  of  a  minor  or  minors,  and 
comply  with  the  existing  laws  by  giving  the  required  security  for  the 
tutorship  of  minors,  it  shall  be  the  duty  of  the  parish  judge  to  summon 
a  family  meeting  according  to  the  provisions  of  this  act,  and  with  its 
advice  to  nominate  one  discreet  and  responsible  person  to  be  tutor,  and 
another  to  be  under  tutor,  who  shall  in  all  respects  comply  with  the 
existing  laws  in  relation  to  tutors,  except  that  of  giving  security  for  his 
administration. 

8  E.  390. 

Art.  289. — The  appointment  or  confirmation  of  tutors  must  be 
made  by  the  judge  of  the  parish  where  the  minor  has  his  domicil,  if  he 
has  a  domicil  in  the  State,  or  if  he  has  no  domicil  in  the  State,  by  the 
judge  of  the  parish  where  the  principal  estate  of  the  minor  is  situated, 
saving  to  the  parties  the  right  of  an  appeal  within  thirty  days  from  the 
judgment  decreeing  the  nomination  or  confirmation,  after  which  delay 
no  appeal  shall  be  admitted. 


45  OF  MIXORS  AND  THEIR  TUTORSHIP.  45 

Art.  290. — In  every  case  where  it  is  necessary  to  appoint  a  tutor 
to  a  minor,  all  those  of  his  relations  who  reside  within  the  parish  of  the 
judge,  who  is  to  appoint  him,  are  bound  to  apply  to  such  judge,  in  order 
that  a  tutor  be  appointed  to  the  minor  at  farthest  within  ten  days  after 
the  event  which  makes  such  appointment  necessary. 

3  K.  803. 

Art.  291. — Minor  relations  and  women  who  are  excluded  from  the 
tutorship  are  not  included  in  the  provisions  contained  in  the  preceding 
article. 

Art.  292. — Relations  who  have  neglected  to  cause  a  tutor  to  be 
appointed  are  responsible  for  the  damages  which  the  minor  may  have 
suffered. 

This  responsibility  is  enforced  against  relations  in  the  order  accord- 
ing to  which  they  are  called  to  the  inheritance  of  the  minor,  so  that 
they  are  responsible  only  in  case  of  the  insolvency  of  him  or  them  who 
precede  them  in  that  order,  and  this  responsibility  is  not  in  solidum 
between  relations  who  have  a  right  to  the  inheritance  in  the  same 
degree. 

3  R.  803. 

Art.  293. — The  action  which  results  from  this  responsibility  cannot 
be  maintained  by  the  tutor,  but  within  the  year  of  his  appointment. 

If  the  tutor  neglects  to  bring  his  action  within  that  time,  he  is  an- 
swerable for  such  neglect  to  the  minor. 

Art.  294. — Whenever  a  circumstance  occurs,  which  makes  the  ap- 
pointment of  a  tutor  necessary,  information  thereof  to  the  conipetent 
judge  may  be  given  by  any  one. 

Art.  295. — When  the  minor  is  without  a  tutor,  any  person  who  has 
a  claim  against  him  may  apply  to  the  competent  judge  to  request  that 
a  tutor  ad  hoc  be  appointed  to  him,  which  tutor  shall  not  be  bound  to 
give  any  security,  but  shall  take  an  oath  before  the  court  who  has  ap- 
pointed him,  to  defend  the  interests  of  the  minor  according  to  the  best 
of  his  knowledge. 

3  L.  433. 

Art.  296. — The  judge  can  appoint  a  tutor  to  a  foundling  or  a  child 
abandoned,  giving  the  preference  always  to  the  person  protecting  it. 

Art.  297. — The  tutor  administers  and  acts  as  such  from  the  day  of 
his  appointment,  if  such  appointment  took  place  when  he  was  present ; 
otherwise,  from  the  day  on  which  notice  was  given  to  him. 

Art.  298. — If  the  tutor  shall  die  or  absent  himself  from  the  State 
after  his  appointment,  another  tutor  shall  be  appointed  in  his  stead  by 
the  judge,  in  the  form  before  prescribed. 

6  N.  S.  8T9 ;  8  L.  4S3 ;  9  L.  567;  Seo  C.  C.  1092,  post. 

Art.  299. — Tutorship  is  a  personal  trust,  which  does  not  descend 
to  the  heirs  of  the  tutor.  Nevertheless  if  the  heirs  of  the  tutor  be  of 
full  age,  they  are  answerable  for  the  administration,  and  are  responsible 
for  the  same,  until  another  tutor  or  curator  shall  have  been  appointed. 

Sec.  Nl.—Ofthe  Under -Tutor. 
Art.  300. — In  everv  tutorship,  there  shall  be  an  under-tutor,  whom 


46  OF  MINORS  AND  THEIR  TUTORSHIP. 

it  shall  be  the  duty  of  the  judge  to  appoint  at  the  time  the  letters  of 
tutorship  are  certified  for  the  tutor. 

2  E.  418. 

Art.  301. — It  is  the  duty  of  the  under-tutor  to  act  for  the  minor, 
whenever  the  interest  of  the  minor  is  in  opposition  to  the  interest  of 
the  tutor. 

1  N.  S.  462 ;  2  L.  142 ;  10  L.  319 ;  12  L.  57T;  1  E.  Ill ;  6  E.  51 ;  4  A.  T7. 

Art.  302. — The  under-tutor  cannot  be  a  member  of  family  meet- 
ings, but  he  must  be  present  for  the  purpose  of  advising,  and  when  he 
is  of  opinion  that  the  determination  of  the  meeting  is  injurious  to  the 
interests  of  the  minor,  it  is  his  duty  to  oppose  the  homologation  of  the 
proceedings. 

4  L.  383 ;  2  A.  941 ;  See  10  L.  319. 

Art.  303. — The  tutorship  does  not  devolve  on  the  under-tutor,  when 
it  is  vacant. 

But  when  it  becomes  necessary  to  appoint  another  tutor,  it  is  the 
duty  of  the  under-tutor,  under  his  responsibility,  to  cause  such  appoint- 
ment to  be  made. 

2  A.  941. 

Art.  304. — The  duties  of  the  under-tutor  are  at  an  end  at  the  same 
time  with  the  tutorship. 

Sec.  VII. — Of  Family  Meetings. 

Art.  305. — Family  meetings,  in  all  cases  in  which  they  are  required 
by  law,  for  the  interest  of  minors  or  of  other  persons,  must  be  composed 
of  at  least  five  relations,  or  in  default  of  relations,  friends  of  him  on 
whose  interests  they  are  called  upon  to  deliberate. 

These  relations  or  friends  must  be  selected  from  among  those  domi- 
ciliated in  the  parish  in  which  the  meeting  is  held. 

Stat.  \st  April.,  1826,  p.  162. — ^.4.  The  article  three  hundred  and 
five  of  the  Civil  Code  be  and  is  hereby  amended  as  follows,  to  wit :  by 
adding,  at  the  end  of  the  second  paragraph  of  the  said  article,  the  fol- 
lowing words  :  or  in  a  neighboring  parish,  provided  it  be  not  at  a  dis- 
tance exceeding  thirty  miles. 

Stat.  25th  March.,  1828,  p.  160. — §  24.  Whenever  any  person  shall 
have  contradictory  interests  with  those  of  one  or  more  minors  in  the 
settlement  of  an  estate,  in  the  partition  and  sale  of  an  undivided  pro- 
perty, or  in  any  business  in  which  a  family  meeting  shall  be  necessary 
to  pronounce  on  the  interest  of  minors  ;  it  shall  not  be  lawful  for  such 
person  to  be  a  member  of  said  family  meeting,  although  he  be  one  of 
the  nearest  relations. 

2L.  584;  11  E.  67;  2  A.  941. 

Art.  306. — The  relations  shall  be  selected  according  to  their  proxi- 
mity, beginning  with  the  nearest. 

The  relation  shall  be  preferred  to  the  connection  of  the  same  degree, 
and  among  relations  of  the  same  degree,  the  eldest  shall  be  preferred. 

See  6  N.  S.  C59 ;  Seo  amendment  to  Ai-t.  305,  Stat.  25tli  March,  1828,  §  24. 

Art.  307. — The  appointment  of  the  members  of  the  family  meeting 
shall  be  made  by  the  judge. 


•17  OF  MINORS  AND  THEIR  TIJTORSHIP.  47 

AuT.  308. — The  family  meeting  shall  be  held  before  a  justice  of 
peace,  or  notary  public  appointed  by  the  judge  for  the  purpose.  It  shall 
be  called  for  a  fixed  day  and  hour,  by  citations  delivered  at  least  three 
days  before  the  day  appointed  for  the  meeting. 

12  E.  6T. 

Art.  309. — The  members  of  the  family  meeting,  before  commencing 
their  deliberations,  shall  take  an  oath  before  the  officer  before  whom  'the 
meeting  is  held,  to  give  their  advice  according  to  the  best  of  their 
know^dgc,  touching  the  interests  of  the  person  on  which  they  are  called 
upon  to  deliberate. 

Art.  310. — Whenever  the  officer,  before  whom  the  family  meeting 
is  to  be  held,  shall  think  proper  to  adjourn  it  in  consequence  of  the 
absence  of  a  member,  or  to  prorogue  it  for  want  of  time  to  terminate 
the  business  in  one  day,  he  can  order  the  adjournment  or  prorogation. 

Art.  311 . — The  officer,  before  whom  the  family  meeting  is  held, 
must  make  a  particular  process  verbal  of  the  deliberations,  cause  the 
members  of  the  family  to  sign  it,  if  they  know  how  to  sign,  sign  it  him- 
self, and  deliver  a  copy  to  the  parties,  that  they  may  have  it  homolo- 
gated. 

Stat.  lOtk  March,  1834,  p.  112.—^  1.  If  any  relation  of  a  minor 
heir  or  heirs,  after  having  been  legally  summoned  to  compose  a  fiimily 
meeting  of  such  minor  heir  or  heirs,  shall  fail  to  attend  according  to 
the  summons,  he  shall  be  liable  to  a  fine  at  the  discretion  of  the  court 
issuing  the  summons,  not  exceeding  twenty  dollars,  to  be  applied  by  the 
court  towards  defraying  the  expenses  of  convoking  and  holding  such 
family  meetings ;  which  fines  shall  be  collected  in  the  same  manner  as 
are  collected  the  fines  imposed  on  witnesses  failing  to  attend  after  having 
been  regularly  summoned. 

^  2.  If  any  relation  or  relations  of  a  minor  heir  or  heirs,  after 
having  been  legally  summoned  to  compose  a  family  meeting,  convoked 
to  deliberate  and  advise  concerning  the  interests  of  such  minor  heir  or 
heirs,  shall  neglect  to  attend  according  to  the  summons,  the  judge  of 
the  court  ordering  the  family  meeting  to  be  convoked,  shall  have  power 
to  appoint  friends  to  compose  such  a  family  as  in  default  of  relations. 

\  3.  The  notices  delivered  by  the  notary,  in  whose  office  the  family 
meeting  is  to  be  held,  to  the  members  who, are  to  compose  said  meeting, 
be,  and  the  same  are  hereby  considered  as  having  the  same  eflfoct,  legally, 
as  the  summons  served  by  the  Sheriff. 


Sec,  VIII. —  Of  the  Causes  ivlnch  dispense  or  excuse  from  the 
Tutorship. 

Art.  312. — The. following  persons  arc  dispensed  or  excused  from 
the  tutorship  by  the  privilege  of  their  offices  or  functions : 

1.  The  governor  and  the  secretary  of  State. 

2.  The  judges  of  the  diflferent  courts  of  this  State,  and  the  officers 
of  the  same. 

3.  The  mayor  of  the  city  of  New- Orleans. 

4.  The  collector  of  the  customs. 


48  OF  MINORS  AND  THEIR  TUTORSHIP. 

5.  The  officers  and  soldiers  attached  to  the  regular  troops,  whether 
on  laud  or  sea  service,  employed,  and  in  actual  service  in  this  State,  and 
all  the  other  officers  who  are  intrusted  in  this  State  with  any  mission 
from  the  government,  as  long  as  they  are  employed. 

6.  Preceptors  and  other  persons  keeping  public  schools,  as  long  as 
they  remain  in  the  useful  and  actual  exercise  of  their  profession. 

7.  Ministers  of  the  gospel. 

Art.  313. — The  persons  mentioned  in  the  preceding  article,  who 
have  accepted  a  tutorship  posterior  to  their  being  invested  with  the 
offices,  engaged  in  the  service,  or  intrusted  with  the  mission  which  dis- 
pense from  it,  shall  not  be  admitted  to  be  excused  on  that  account. 

Art.  314. — Those,  on  the  contrary,  who  shall  have  been  invested 
with  offices,  who  shall  have  engaged  in  the  service,  or  shall  have  been 
intrusted  with  commissions,  posterior  to  their  acceptation  and  adminis- 
tration of  a  tutorship,  may,  if  they  do  not  choose  to  continue  to  act  a^ 
tutor,  be  excused  from  the  tutorship,  and  apply  for  the  appointment  of 
another  tutor  to  supply  their  place. 

Art.  315 — No  person  who  is  neither  a  relation  nor  a  connection 
by  affinity  of  the  minor,  or  who  is  not  related  or  connected  with  him 
beyond  the  fourth  degree,  can  be  compelled  to  accept  the  tutorship. 

Art.  316. — Every  person  who  has  attained  the  age  of  sixty-five 
years  may  refuse  to  be  a  tutor. 

The  person  who  shall  have  been  appointed  prior  to  that  age  may 
be  excused  from  the  tutorship  at  the  age  of  seventy  years. 

Art.  317. — Every  person  affected  with  a  serious  infirmity  may  be 
excused  ffom  the  tutorship,  if  this  infirmity  be  of  such  nature  as  to 
render  him  incapable  of  transacting  his  own  business. 

He  may  even  be  discharged  from  the  tutorship,  if  such  infirmity  has 
befallen  him  after  his  appointment. 

Art.  318. — The  person  who  is  appointed  to  two  tutorships  has  a 
legal  excuse  for  not  accepting  a  third. 

He  who,  being  a  husband  or  a  father,  shall  have  already  been  ap- 
pointed to  one  tutorship,  shall  not  be  compelled  to  accept  a  second 
tutorship,  except  it  be  that  of  his  own  children. 

Art.  319. — The  tutor  who  has  excuses  to  offer  against  his  appoint- 
ment, must  propose  them  to  the  judge  who  has  appointed  him,  within 
ten  days  after  he  has  been  acquainted  with  his  appointment,  or  after 
the  same  shall  have  been  notified  to  him,  which  period  shall  be  increased 
one  day  for  every  four  leagues'  distance  from  his  residence  to  the  place 
where  his  appointment  was  made,  and  after  this  delay  he  shall  no  lon- 
ger be  admitted  to  ofi"er  any  excuse,  unless  he  has  sufficient  reason  to 
account  for  such  delay. 

See  2  E.  418. 

Art.  320. — During  the  time  of  the  pendency  of  the  litigation  rela- 
tive to  the  validity  of  his  excuses,  the  tutor  who  is  appointed  shall  be 
bound  provisionally  to  administer  as  such,  until  he  shall  have  been 
regularly  discharged. 

^  ^  ^  UK.  503. 

Art.  321. — The  causes  herein  expressed,  or  any  other,  cannot  ex- 
cuse the  father  from  the  obligation  of  accepting  the  tutorship  of  his 
children. 


49  OF  MINORS  AND  THEIR  TUTORSHIP.  49 

Section  IX. —  Of  the  Licajyacity  for,t]ie  Exclusion  from ^  and  Depri 
vation  of\  the  Tutorship. 

^Art.  322. — The  following  persons  cannot  be  tutors,  to  wit : 

1.  Slaves. 

2.  Minors,  except  the  father  and  mother. 

3.  Women,  except  the  mother  and  grandmother. 

2  A.  623. 

4.  Idiots  and  lunatics. 

5.  Those  whose  infirmities  prevent  them  from  managing  their  own 
affairs. 

6.  Those  whom  the  penal  law  declares  incapable  of  holding  a  civil 
office. 

7.  Those  who  are  themselves,  or  whose  father  or  mother  are  parties 
to  a  lawsuit,  on  the  result  of  which  the  condition  of  the  minor,  or  part 
of  his  fortune,  may  depend. 

8.  Those  who  are  debtors  to  the  minor,  unless  they  discharge  the 
debt,  prior  to  their  appointment. 

Art.  323. — The  following  persons  are  excluded  from  the  tutor- 
ship, and  are  even  liable  to  be  removed  from  it,  if  in  the  actual  exercise 
of  it : 

1.  Persons  of  a  conduct  notoriously  bad. 

2.  Those  whose  management  shall  manifest  either  incapacity  or  dis- 
honesty. 

3.  Those  who  shall  have  neglected  to  cause  inventory  to  be  made 
of  the  minor's  property,  within  the  time  prescribed  by  law. 

See  10  L.  82  ;  13  L.  1. 

Art.  324. — The  tutor  who  becomes  insolvent  after  his  appointment, 
is  to  be  removed  from  the  tutorship. 

3  A.  862;  See4N.  S.370;  5N.  S.  21. 

Art.  325. — All  the  causes  of  incapacity,  exclusion,  and  removal, 
mentioned  above,  apply  likewise  to  the  under-tutor. 

2  A.  418. 

Art.  326. — No  cause  of  exclusion  or  removal  is  applicable  to  the 
father,  except  that  of  unfaithfulness  of  his  administration,  and  of  no- 
toriously bad  conduc:, 

2  A.  293,  750. 

Section  X. — Of  the  Administration  of  the  Tutor. 

Art.  327. — The  tutor  shall  have  the  care  of  the  person  of  the 
minor,  and  shall  represent  him  in  all  civil  acts. 

He  shall  administer  his  estate  as  a  prudent  administrator  would  do, 
and  shall  be  responsible  for  all  damages  resulting  from  a  bad  adminis- 
tration. 

He  cannot  either  personally,  or  by  means  of  a  third  person,  pur- 
chase, lease  or  hire  the  property  of  the  minor,  or  accept  the  assignment 
of  any  right  or  claim  against  his  ward. 

Stat.     \st  April.,  1843,  p.    97. — ^    1.    Hereafter    any  person  who 

has  been  or  shall  be  appointed  tutor  or  guardian  of  any  minor  residing 

out  of  the  State  of  Louisiana,  but  within  the  United  States,  and  who 

has  (jualified  as  tutor  or  guardian  of  said  minor,  in  conformity  with 

4 


50  OF  MINORS  AND  THEIR  TUTORSHIP. 

the  laws  of  the  State  or  country  where  said  appointment  is  made,  shall 
be  entitled  to  sue  for  and  recover  any  property,  rights,  or  credits,  be- 
longing to  said  minor  within  this  State,  upon  his  producing  satisfactory 
evidence  of  his  appointment  as  aforesaid,  without  being  under  the  ne- 
cessity of  qualifying  as  tutor  of  said  minor  according  to  the  laws  of 
Louisiana. 

^  2.  All  laws  and  parts  of  laws  contrary  to  this  act,  be  and  the 
same  are  hereby  repealed  :  Frovided  that  nothing  in  this  act  shall 
authorize  any  such  tutor  or  guardian  to  take  possession  of,  or  remove 
from  the  State,  the  property  of  any  minor  or  estate,  unless  satisfactory 
proof  be  furnished  to  the  court  that  the  debts  of  the  succession  are 
paid,  or  that  none  exist  in  the  State,  which  proof  shall  consist  in  pub- 
lic advertisements  in  the  newspapers,  for  at  least  thirty  days,  in  the 
manner  prescribed  by  law  for  the  rendering  of  accounts  by  tutors  and 
administrators. 

6  L.  205,  500 ;  15  L.  69 ;  17  L.  104;  T  R.  24;  10  E.  45T ;  12  R.  41 ;  2  A.  816,  462 ;  3  A.  611,  582 :  See  10 
L  .  272,  319;  1  R.  407;  9  R.  13S;  11  R.  67;  5  L.  20. 

Art.  328. — Both  the  tutor  and  the  under-tutor  shall,  prior  to  their 
entering  upon  the  exercise  of  their  duties,  take  an  oath  before  the  judge, 
that  they  will  well  and  faithfully  fulfil  their  trust. 

8  M.  4-12  ;  5  N.  S.  624 ;  8  N.  S.  581 ;  6  L.  851 ;  2  N.  S.  612  ;  4  R.  290 ;  11  R.  503 ;  8  A.  562,  611. 

Art.  329. — It  is  the  duty  of  the  tutor  to  cause  a  true  and  faithful 
inventory  to  be  made  of  the  movable  and  immovable  property,  credits, 
deeds,  and  papers  belonging  to  the  minor,  and  to  cause  the  said  property 
to  be  valued  by  two  appraisers,  appointed  by  the  judge  and  duly  sworn. 

This  inventory  shall  be  begun  at  farthest  within  ten  days  after  the 
appointment  of  the  tutor,  by  the  judge  himself,  or  by  any  notary  public 
authorized  to  that  effect  by  him. 

6  A.  64;  5  L.  434;  S  M.  412;  1  N.  S.  462;  2  N.  S.  73. 

Art.  330. — Every  tutor,  except  the  father  and  mother,  shall  give 
to  the  judge,  who  either  appointed  or  confirmed  him,  good  and  sufficient 
security  for  the  fidelity  of  his  administration. 

This  security  must  be  in  amount  equal  to  the  amount  of  the  credits, 
money,  and  other  movable  effects  stated  in  the  inventory,  and  such 
other  sum  as  the  judge  shall  deem  sufficient  to  cover  any  loss  or 
damage  which  the  tutor  may  occasion  to  the  minor  by  his  bad  adminis- 
tration. 

This  security  may  be  increased  or  diminished  on  the  demand  of  the 
under-tutor  or  any  relation  of  the  minor,  as  the  disposable  funds  of  the 
estate  may  increase  or  diminish. 

17  L.  104;  1  R.  407;  7  R.  24;  9R.  138;  11  R.  67;  2  A.  462  ;  6  A.  64;  Sec  10  R.  457;  12  R.  41,  323. 

Art.  331. — The  tutor  may  be  exempted  from  furnishing  this  secu- 
rity, if  he  prove  that  he  possesses,  within  the  State,  real  property,  un- 
encumbered with  mortgages  or  other  liens,  of  the  value  of  double  the 
sum  fixed  for  the  security,  or  if  he  give  a  special  mortgage  on  immov- 
able unencumbered  property,  equal  in  value  to  the  amount  of  the 
security  required. 

Stat.  11,  March,  1830,  p.  46. — §  1.  From  and  after  the  passage  of 
this  act,  any  surviving  fiither  or  mother  who  shall  have  heretofore  be- 
come, or  shall  hereafter  become,  the  natural  tutor  or  tutrix,  curator  or 
curatrix  of  their  minor  child  or  children,  may  and  they  are  hereby 


51  OF  MINORS  AND  THEIR  TUTORSHIP. 


51 


permitted  to  give  a  special  mortgage  on  immovable  property,  not  slaves 

for  the  security  of  the  riglits  and  property  of  their  said  children  and 

the  taithfiil  discharge  of    their  functions   as   tutor  or  tutrix    curator 

orcutratnx  aforesaid:  Provided  that  a  meeting  of  the  family  of  the 

said  minor  or  mmors,  duly  called  according  to  law,  on  the  petition  of  the 

said  surviving  Either  or  mother  to  that  effect,  addressed  to  the  court  of 

probates  of  the  proper  parish,  shall  declare  that  the  property  offered  to 

be  so_  specially  mortgaged  is  in  the  opinion  of  said  family  mcetino-  of 

sufficient  value  to  secure  the  rights  of  said  child  or  children  in  capital 

and  interest  which  mortgage  shall  be  executed  in  the  same  manner  that 

mortgages  of  the  like  nature  are  now  executed  by  curators  ad  bona  of 

minors.     And  from  and  after  the  execution  of  the  said  special  mort<vao-e 

by  the  said  father  or  mother,  natural  tutor  or  tutrix  as  aforesaicf  all 

the  remaining  property  of  the  said  father  or  mother,  acquired  or  to  be 

acquired,  shall  be  completely  discharged  from  all  legal,  tacit,  or  any 

other  description  of  mortgages,  hypothecation,  or  lien  whatever  arising 

irom  said  tutorship.  ° 

.1  ^n-'  -l^^'f^  °^  ^^  adjudication  made  under  the  338th  article  of 
the  Civil  Code,  or  any  other  law  authorizing  similar  adjudications  a 
special  mortgage  may  be  given  by  the  father  or  mother  on  real  property 
not- slaves  to  secure  the  rights  of  the  minors;  and  such  a  special  mort- 
gage shall  have  the  effect  of  annulling  the  mortgage  arisin.^  from  such 
adjudication.  ° 

^3.  A  special  mortgage  given  in  favor  of  a  minor  or  minors  may 
be  changed  after  a  family  meeting,  called  and  held  accordino-  to  law 
shall  have  recommended  such  change,  and  after  the  deliberations  of 
said  tamily  meeting  shall  have  been  duly  homologated  ;  provided  that 
the  title  of  the  property  proposed  to  be. mortgaged  shall  be  laid  before 
the  said  fomily  meeting,  and  shall  be  carefully  inspected  by  the  uuder- 
tutor  and  the  judge;  and  provided  that  all  the  other  provisions  con- 
tained in  this  act  shall  be  fully  complied  with. 

§  4.  In  all  cases  of  application  made  by  a  father  or  mother  to  o-ive 
a  special  mortgage,  the  person  applying  shall  be  bound  to  present 
at  the  tainily  meeting  a  certificate  from  the  register  of  inorto-ao-es  show- 
ing what  mortgages  if  any  exist  on  the  property  offered  to  be*spccially 
mortgaged;  the  under-tutor  shall  be  called,  and  it  shall  be  his  duty  to 
be  present  at  the  deliberations  of  the  family  meeting,  and  when  not 
tuUy  satisfied  with  the  value  or  kind  of  property  offered  to  be  mort- 
gaged, with  the  validity  of  the  titles  of  said  property,  or  with  the  de- 
liberations of  the  family  meeting,  he  shall  refuse  his  approbation  to  said 
deliberations ;  and  any  under-tutor  neglecting  to  perform  the  duties 
hereby  prescribed,  or  neglecting  to  ascertain  the  real  value  of  the 
property  offered  to  be  mortgaged,  shall  be  responsible  to  the  minors  for 
any  OSS  tliey  may  experience  from  such  neglect ;  and  it  shall  also  be 
the  duty  of  the  under-tutor,  whenever  the  value  of  the  property  speci- 
ally mortgaged  shall  have  diminished  so  as  to  endanger  the  interest  of 
the  minors,  to  require  an  additional  mortgage. 

§  5.  Whenever  an  under-tutor  shall  refuse  to  approve  of  the  deli- 
berations of  a  family  meeting,   or  object  to  their  homologation,  the 


52  OF  MINORS  AND  THETk   rUTORSHIP. 

court  sliall  decide  whether  the  opposition  is  well  founded,  and  if  un 
founded,  the  opposition  shall  be  overruled,  and  the  deliberations  homolo- 
gated as  if  no  opposition  had  taken  place  :  Provided  that  when  the 
court  shall  decide  that  the  opposition  of  the  under-tutor  is  unfounded, 
and  shall  homologate  the  deliberations  of  the  family  meeting,  the  under- 
tutor  shall  be  exonerated  from  the  personal  responsibility  which  is 
imposed  upon  him  by  the  preceding  section. 

^  6.  All  costs  occasioned  by  the  demand  to  give  a  special  mortgage 
shall  be  paid  by  the  persons  making  the  application. 

§  7.  It  is  hereby  made  the  duty  of  all  public  officers  before  whom 
family  meetings  shall  be  called,  to  read  this  act  to  them  and  to  the 
under-tutors,  and  any  officer  failing  to  perform  this  duty  shall  be  respon- 
sible for  any  loss  arising  from  such  neglect  either  to  the  under-tutor  or 
to  the  minor  or  minors. 

6  8.  In  all  cases  where  special  mortgages  shall  be  given  by  curators 
or  tutors  in  lieu  of  the  legal  mortgage  existing  in  such  cases,  as  recog- 
nized by  law,  it  shall  be  the  duty  of  the  judge  receiving  such  special 
mortgage  to  cause  the  property  to  be  mortgaged  to  be  appraised  by  ex- 
perts, in  the  same  manner  as  is  provided  when  adjudications  of  the 
property  of  minors  are  made  to  their  surviving  father  or  mother,  and 
the  judge  shall  in  no  case  accept  the  said  mortgage  unless  the  value  of 
the  property  so  appraised  shall  exceed,  exclusive  of  all  prior  liens, 
privileges,  or  mortgages,  the  amount  of  the  debts  or  rights  of  the 
minors  intended  to  be  secured  by  the  said  special  mortgage  by  at  least 
twenty-five  per  cent,  in  addition  to  the  amount  of  the  said  debts  or 
rights,  to  be  ascertained  by  a  previous  liquidation  to  he  made  according 
to  law  in  the  office  of  the  judge  having  jurisdiction  of  the  said  matter, 
and  including  all  interest  which  will  probably  accrue. 

§  10.  The  grandfather  or  grandmother,  when  the  tutorship  shall 
have  devolved  or  may  devolve  upon  either  of  them  by  operation  of  law, 
shall  be  entitled  to  the  benefit  of  the  provisions  in  favor  of  natural 
tutors  or  tutrix,  contained  in  the  first  section  of  this  act. 

1  L.  843 ;  2  A.  402. 

Art.  332. — The  letters  of  tutorship  shall  not  be  delivered  to  the 
tutor  until  he  shall  have  furnished  security  of  one  of  the  kinds  before 
described. 

Until  they  shall  have  been  delivered  to  him,  he  shall  not  interfere 
with  the  administration  of  the  property  of  the  minor,  except  for  the 
purpose  of  preserving  it,  in  cases  which  admit  of  no  delay. 

2  A.  402;  4  A.  123. 

Art.  333. — Within  a  month  after  the  closing  of  the  inventory,  the 
tutor  must  cause  the  movable  effects  of  the  minor  to  be  sold,  unless 
he  be  authorized  by  the  judge  to  preserve  them  in  kind,  in  whole  or  in 
part,  in  consequence  of  the  time  approaching  for  the  emancipation  of 
the  minor,  or  for  any  other  sufficient  reason  ;  in  which  case  the  tutor 
bhall  return  to  the  minor  the  estimated  value  of  those  movables,  which 
he  cannot  restore  in  kind,  or  which  he  has  suffered  to  deteriorate  through 
vrant  of  care. 

3  A.- 611;  12  E.  385. 

Art.  334. — The  immovables  and  slaves  of  the  minor  cannot  be 
alienated  or  mortgaged,  unless  on  the  representation  of  the  tutor,  that 


53  OF  MINORS  AND  THEIR  TUTORSHIP.  53 

it  is  for  the  interest  of  the  minor  that  these  objects  or  a  part  of  them 
should  be  sold  or  mortgaged,  a  meeting  of  the  family  duly  assembled 
shall  declare  that  the  sale  or  mortgage  is  of  absolute  necessity,  or  of 
evident  advantage  to  the  minor. 

10  M.  225,  726 ;  1  N.  S.  605,  62S  :  4  L.  2G9 ;  .S  E.  262 ;  11  E.  50S ;  See  10  L.  272,  319,  592  ;  19  L.  441 ; 
8  M.  532;  11  M.  717;  10  E.  457;  8  L.  412;  15  L.  436;  17  L.  500. 

Art.  335. — In  case  the  meeting  of  the  fiimily  shall  consider  the  sale 
or  mortgage  to  be  advantageous  to  the  minor,  it  shall  set  forth  the  rea- 
sons of  its  determination,  in  order  that  the  judge  may  decide  whether 
he  ought  to  cause  it  to  be  homologated  or  not,  and  shall  also  fix  the 
terms  of  credit  on  which  the  property  shall  be  sold,  and  the  other  con- 
ditions of  the  sale,  if  the  case  requires  it. 

3  R.  202  ;  11  E.  503  ;  4  A.  520  ;  See  4  L.  477 ;  7  L.  812 ;  10  L.  272,  319. 

Art.  33G. — The  sale  of  the  property  of  the  minor  shall  be  autho- 
rized by  the  judge,  and  made  at  public  auction,  after  having  been  duly 
advertised  in  English  and  French,  during  ten  days  for  movables,  and 
thirty  days  for  immovables  and  slaves,  either  by  papers  posted  up  at 
the  usual  places,  if  the  sale  is  made  out  of  the  parish  of  New-Orleans, 
or  by  advertisements  inserted  in  at  least  two  newspapers  which  are 
printed  in  the  city  of  New-Orleans,  if  the  sale  is  made  within  the 
limits  of  that  parish. 

In  those  parishes  in  •ythich  a  newspaper  is  published,  the  sale  must 
be  advertised  in  the  newspapers,  besides  the  publication  by  papers 
posted  up,  as  herein  prescribed. 

17  L.  500 ;  3  E.  262 ;  See  4  L.  3S3 ;  7  L.  312 ;  10  L.  638. 

Art.  337. — The  minor's  property  cannot  be  sold  for  less  than  the 
amount  of  its  appraised  value  mentioned  in  the  inventory,  and  if  there 
is  no  offer  to  that  amount,  it  shall  be  again  offered  for  sale  at  public 
auction,  with  the  same  formalities  which  are  above  directed,  until  the 
price  of  its  appraisement  may  be  obtained,  reserving  to  the  judge,  with 
the  advice  of  the  meeting  of  the  family,  the  power  of  extending  the 
terms  of  credit  granted,  and  of  giving  such  other  facilities  as  may  pro- 
cure a  prompt  and  advantageous  sale  of  the  property,  and  of  ordering 
other  appraisement  or  appraisements,  in  case  he  shall  be  satisfied  tha't 
the  sale  cannot  be  effected  at  the  rate  of  appraisement  already  made. 

7  L.  312  ;  8  L.  177,  321 ;  13  L.  84;  11  E.  508;  9  M.  461. 

Art.  338. — Whenever  the  father  or  mother  of  a  minor  has  pro- 
perty in  common  with  him,  they  each  can  cause  it  to  be  adjudicated  to 
them,  either  in  whole  or  in  part,  at  the  price  of  an  estimation  made  by 
experts  appointed  and  sworn  by  tlie  judge,  after  a  family  meeting,  duly 
assembled,  shall  have  declared  that  the  adjudication  is  for  the  interest 
of  the  minor,  and  the  under-tutor  shall  have  given  his  consent  thereto  ; 
and  in  this  case  the  property  so  adjudicated  shall  remain  specially  mort- 
gaged for  the  security  of  the  payment  of  the  price  of  the  adjudication 
and  the  interest  thereof 

Stat.  17 th  March,  182G,  p.  8G.— <^  1.  Whenever  any  of  the  chil- 
dren of  a  person  to  whom  property  acquired  during  the  marriage  of 
said  person  and  his  or  her  deceased  husband  or  wife  has  been  adjudi- 
cated under  the  second  section  of  the  act  entitled  "  An  act  to  amend  the 
uintli  section  of  the  eighth  title  of  the  first  book  of  the  Digest,  respect- 
ing tutors  and  curators  of  minors,  and  containing  additional  provision? 


54  OF  MINORS  AND  THEIR  TUTORSHIP. 

to  the  same,"  or  under  tlie  article  338  of  the  Civil  Code  now  in  force 
in  this  State,  shall  have  attained  the  age  of  majority,  the  property  sc 
adjudicated,  or  any.  part  thereof  as  may  be  "necessary,  may  be  sold  by 
public  auction,  to  pay  to  the  said  children  their  share  in  the  price  at 
which  the  same  shall  have  been  adjudicated  ;  and  that  in  case  after  such 
a  sale  the  balance  of  the  said  property  remaining  in  the  hands  of  the 
father  or  mother  shall  be  deemed  insufficient  to  cover  the  claim  of  the 
other  child  or  children  who  are  still  minors,  it  shall  be  the  duty  of  the 
father  or  mother  to  whom  the  aforesaid  proj^erty  has  been  adjudicated, 
to  furnish  and  give  upon  some  other  valuable  property  an  additional 
special  mortgage,  in  order  completely  to  secure  the  claim  of  said  minor 
children ;  provided  that  the  sale  authorized  by  this  act  be  made  and 
the  additional  mortgage  accepted  after  having  obtained  the  consent  of 
the  family  meeting;  which  family  meeting,  in  ease  they  are  of  opinion 
that  the  father  or  mother  to  whom  the  property  was  adjudicated  as 
aforesaid,  cannot  pay  those  of  his  or  her  children  who  have  attained 
the  age  of  majority,  without' selling  the  said  property  or  any  part  there- 
of, shall  have  power  to  give  their  said  consent  and  raise  the  special 
mortgage  existing  in  favor  of  the  said  minor  children  upon  the  property 
thus  to  be  sold,  and  provided  also,  that  in  case  of  insufficiency  of  the 
balance  of  the  said  property  as  above-mentioned,  the  said  mortgage 
shall  not  be  raised  until  after  the  additional  one  above  required  be  given, 
accepted,  and  duly  recorded. 

^  2.  Whenever  an  application  shall  be  made  by  children  having 
attained  their  age  of  majority,  to  be  paid  their  shares  in  the  price 
of  the  adjudication  of  the  property  aforesaid,  if  the  family  meeting  be 
of  opinion  that  said  property  is  insufficient  to  cover  the  claims  of  all 
the  children  in  principal  and  interest,  and  the  father  or  mother  to  whom 
the  property  has  been  adjudicated  is  not  possessed  of  other  real  pro- 
perty sufficient  to  supply  by  a  special  mortgage  thereon  the  deficiency 
of  the  property  adjudicated,  the  whole  of  the  said  adjudicated  property 
shall  be  sold,  and  a  division  of  the  net  proceeds  thereof  made  among 
all  the  children  j^^o  rata ;  and  after  the  said  division  shall  have  beeli 
made,  the  children  who  shall  have  attained  their  age  of  majority  shall 
be  paid  their  respective  shares  accordingly,  and  the  shares  accruing  to 
the  then  still  miuor'children  shall  be  placed  in  the  hands  of  their  tutor  or 
curator,  to  be  administered  according  to  the  rules  and  principles  gov- 
erning the  administration  of  the  property  of  minors  by  their  tutors  or 
curators. 

Sec  amendment  to  Art.  331 ;  §  2  ;  1  N.  S.  623 ;  1 R.  378 ;  2  A.  162 ;  5  A.  121 ;  13  L.  1T3 ;  See  10  L..S19. 

Art.  339. — -The  prohibition  of  alienating  the  immovables  and  slaves 
of  a  minor  docs  not  extend  to  the  case  in  which  a  judgment  is  to  be 
executed  against  him,  or  of  a  licitation  made  at  the  instance  of  a  coheir, 
or  other  coproprietor. 

7L.  312;  8L.  17T;  13L.  159. 

Art.  340. — If,  among  the  property  of  the  minor,  there  be  any  which 
it  may  be  necessary  to  work  as  a  plantation  or  a  manufactory,  the  tutor 
shall  not  be  bound  to  administer  them,  or  to  cause  them  to  be  adminis- 


55  OF  MINORS  AND  THEIR  TUTORSHIP.  55 

tered,  but  he  sliall  be  permitted  to  let  iihem  for  an  annual  rent  propor- 
tioned to  their  value. 

The  adjudication  of  the  lease  must  be  made  at  public  auction. 

Art.  341. — The  tutor  shall  be  bound  to  invest,  in  the  name  of  the 
minor,  the  revenues  which  exceed  the  expenses  of  his  ward,  whenever 
they  amount  to  five  hundred  dollars.  In  default  thereof,  he  shall  be 
bound  to  pay  on  such  excess  the  highest  conventional  interest  allowed 
by  law. 

The  investment  of  the  funds  of  the  minor  must  be  made  by  public 
act,  and  secured  by  mortgage. 

Sfat.  \9tlb  February,  1825,  p.  198. — ^  1.  Instead  of  the  highest  con- 
ventional interest  which  tutors  of  minors  are  by  the  341st  article  of  the 
Civil  Code  of  the  State  made  liable  to  pay  to  their  pupils,  on  the  funds 
which  they  have  failed  to  place  at  interest  for  their  use,  the  said  tutors 
will  be  accountable  only  for  legal  interest ;  and  that  when  said  Code  will 
be  promulgated,  the  said  article  341  will  not  be  in  force,  except  so  far 
as  it  is  not  contrary  to  the  provisions  of  this  act. 

5  L.490;  9R.  286;  3A.  Cll. 

Art.  342. — The  tutor  may  retain  as  a  commission  for  his  care  and 
labor,  ten  per  cent,  on  the  annual  amount  of  the  revenues  of  the  property 
committed  to  his  charge. 

4L.  134;  3  A.  S2S*SG2. 

Art.  343. — The  expenses  for  the  support  and  education  of  the  minor 
ought  to  be  so  regulated,  that  nothing  decent  or  necessary  shall  be 
wanting  to  him,  according  to  his  condition  and  his  fortune.  They  ought 
never  to  exceed  his  revenues.  But  if  the  revenues  are  not  sufiicient  to 
procure  him  an  education,  the  tutor  must  cause  a  meeting  of  the  family 
to  be  assembled  in  order  to  deliberate  whether  it  be  for  the  advantage 
of  the  minor  that  something  should  be  taken  from  his  capital,  in  order 
to  insure  to  him  the  advantage  of  a  liberal  education. 

In  case  also  that  tlic  revenue  of  the  minor  should  be  evidently  in- 
sufficient to  procure  him  subsistence,  the  tutor,  by  the  advice  of  the 
family  meeting,  may  be  authorized  to  take  from  the  capital  in  order  to 
supply  his  wants. 

12  R.  8S5 ;  5  L.  4SS ;  See  10  L.  272 ;  3  E.  2S3. 

Art.  344. — The  tutor  administers  by  himself  alone  ;  all  the  deeds 
are  made  by  him  and  in  his  name,  without  the  concurrence  of  the  minor. 

He  can,  on  his  own  responsibility,  act  by  an  attorney  in  fact,  in 
places  distant  from  his  residence. 

15  L.  69 ;  See  3  R.  2S3. 

Art.  345. — The  tutor  cannot,  without  an  authority  from  the  judge, 
by  and  with  the  advice  of  a  family  meeting,  accept  or  refuse  an  inherit- 
ance which  has  descended  to  the  minor. 

9  R.  78 ;  8  L.  .321. 

Art.  346. — The  acceptance  of  an  inheritance,  wliich  has  accrued  to 
a  minor,  can  be  made  in  no  other  way  than  with  the  benefit  of  an 
inventory. 

17  L.  500;  9  R.  13S,  167;  Sco  8  R.  29. 

Art.  347. — The  inheritance  which  has  been  refused  by  the  tutor 
authorized  by  the  judge,  may  be  resumed  or  accepted  by  the  tutor  by  a 
similar  authority,  or  by  the  minor  when  arrived  at  the  age  of  majority, 


56  OF  MINORS  AND  THEIR  TUTORSHIP. 

in  ease  such  inlieritance  shall  not  have  been  accepted  by  any  other 
person. 

But  the  inheritance  must  be  taken  such  as  it  is  at  the  time  of  claim- 
ing the  same,  and  the  claimant  shall  have  no  right  to  contest  any  sales 
or  other  acts,  which  may  have  been  legally  made,  during  the  vacancy  of 
the  inheritance. 

10  L.  503. 

Art.  348. — The  tutor  cannot  borrow  for  the  minor,  purchase  for 
him  immovables  or  slaves,  or  compromise  respecting  his  rights,  without 
an  authority  from  the  judge,  granted  on  the  advice  of  a  meeting  of  the 
family. 

2  A.  Tl ;  Sec  6  N.  S.  190. 

Art.  349. — The  tutor  may  accept  legacies,  donations  and  other 
advantages  made  to  his  ward ;  but  he  cannot,  in  any  case,  dispose  gra- 
tuitously of  the  movable  or  immovable  property  of  the  minor,  or  of  any 
part  thereof. 

4  L.  477. 

Art.  350. — The  tutor  is  bound  to  give  an  account  of  his  adminis- 
tration at  the  expiration  of  the  tutorship,  and  whenever  he  is  ordered  to 
do  so,  by  the  judge. 

2  A.  71 ;  8  N.  S.  665 ;  See  10  L.  310. 

Art.  351. — The  tutor  who  absents  himself  from  the  State,  is  bound 
to  cause  another  tutor  to  be  appointed  in  his  stead,  and,  previous  to  his 
departure,  to  give  an  account  of  his  administration;  and  if  he  neglects 
so  to  do,  he  may  be  arrested  and  held  to  bail  in  such  sum  as  the  judge 
shall  determine. 

On  his  return,  the  judge  shall  decide  whether  he  is  to  resume  his 
tutorship  or  not. 

15  L.  T4  ;  See  17  L.  433,  537. 

Art.  352. — The  account  of  the  tutorship  is  given  at  the  expense  of 
the  minor ;  the  tutor  advances  that  expense. 

1  K.  842 ;  See  12  M.  106. 

Art.  353. — The  sum  which  appears  to  be  due  by  the  tutor  as  the 
balance  of  his  accounts,  bears  interest,  without  a  judicial  demand,  from 
the  day  on  which  the  accounts  were  closed. 

The  same  rule  applies  to  the  balance  due  to  the  tutor. 

5  A.  565 ;  See  12  M.  106. 

Art.  354. — The  property  of  the  tutor  is  tacitly  mortgaged  in  favor 
of  the  minor  from  the  day  of  the  appointment  of  the  tutor,  as  security  for 
his  administration,  and  for  the  responsibility  which  results  from  it.  This 
general  mortgage  does  not  take  eflFect,  when  the  tutor  has  given  a  special 
mortgage  according  to  article  331. 

5  M.  574;  7  M.  861 ;  8  L.  193;  2  K.  501 ;  See  12  R.  172;  post  arts.  3232,  8233,  3298. 

Art.  355. — Every  agreement  wnich  may  take  place  between  the  tutor 
and  the  minor  arrived  at  the  age  of  majority,  shall  be  null  and  void, 
unless  the  same  was  entered  into  after  the  rendering  of  a  full  account 
and  delivery  of  the  vouchers,  the  whole  being  made  to  appear  by  the 
receipt  of  the  person  to  whom  the  account  was  rendered,  ten  days  previous 
to  the  agreement. 

2  L.  523 ;  10  L.  264 ;  4  K.  290 ;  1  A.  35 ;  2  A.  71 ;  See  arts.  1465, 1466. 


57  OF  MmORS  AND  THEIR  CURATORSHIP.  57 

Art.  356. — The  action  of  the  minor  against  his  tutor,  respecting  the 
acts  of  the  tutorship,  is  prescribed  by  four  years,  to  begin  from  the  day 
of  his  majority. 

4  L.  368 ;  6  L.  161 ;  1  E.  Ill ;  11  K.  491 ;  10  R.  178 ;  4  A.  458 ;  2  A.  160 ;  6  A.  327;  See  arts.  2218, 

8039,  8507. 

CHAPTER  II. 

OF  THE  CURATORSHir  OF  MINORS. 

Art.  357. — When  the  minors  arc  arrived  to  the  age  of  puberty,  that 
is  at  the  full  age  of  fourteen  years  for  males,  or  at  the  full  age  of  twelve 
years  for  females,  they  pass  from  under  the  authority  of  a  tutor  to  that 
of  a  curator. 

Stat,  \7tli  March,  1828  p  58. — ^  1.  Whenever  a  father  or  mother 
has  appointed  a  tutor  to  his  or  her  child,  by  his  last  will  or  testament, 
the  said  child  shall  remain  under  the  authority  of  the  said  tutor  until 
heor  she  arrives  at  the  age  of  majority,  or  is  emancipated;  unless  the 
said  tutor  should  be  removed  from  his  office  for  any  of  the  causes  men- 
tioned in  the  three  hundred  and  twenty-third  article  of  the  Civil  Code. 

§  2.  Whenever  a  minor  shall  arrive  at  the  age  of  puberty,  if  he  is 
then  under  the  authority  of  his  father  or  mother,  as  his  guardian,  he  shall 
remain  under  their  said  authority  until  the  said  minor  arrives  at  the 
age  of  majority,  or  is  emancipated;  unless  his  guardian,  if  he  be  his 
father,  should  have  been  removed  from  his  office  for  any  of  the  causes 
mentioned  in  the  three  hundred  and  twenty-sixth  article  of  the  said  Code ; 
or,  if  his  mother  be  his  guardian,  unless  she  has  contracted  a  second 
marriage,  in  which  case  a  curator  ad  bona  shall  be  appointed  to  the  said 
minor,  unless  the  judge  had  authorized  the  mother  to  retain  her  guar- 
dianship since  the  said  marriage,  by  and  with  the  advice  of  the  family 
meeting  of  the  said  minor. 

^  3.  So  much  of  the  three  hundred  and  fifty-seventh  and  three  hun- 
dred and  sixty-second  articles  of  the  Civil  Code  as  is  contrary  to  the 
provisions  of  this  act,  be,  and  the  same  is  hereby  repealed. 

Stat,  nth  March,  1830,  p.  48.— §  9.  There  shall  be  hereafter  no 
curator  ad  bona  or  curator  ad  litem  appointed  in  any  case ;  the 
persons  and  estates  of  minors  shall  in  all  cases  be  placed  under  the  power 
of  tutors  and  under  tutors ;  and  the  powers,  duties  and  responsi- 
bilities of  tutors  and  under-tutors,  as  well  as  their  liability  to  be  re- 
moved from  office,  shall  continue  until  the  minor  or  minors  attain  the  age 
of  majority,  or  are  otherwise  emancipated:  Provided  that  this  section 
shall  not  apply  to  cases  in  which  curators  ad  bona  shall  have  been  ap- 
pointed before  the  promulgation  of  this  act. 

Art.  358. — There  are  two  kinds  of  curators  for  minors  above  the  age 
of  puberty : 

The  curator  ad  bona  (of  property  ;) 

The  curator  ad  litem  (for  suits.) 

See  aniondnicnt  to  art.  357. 

Art.  359. — The  curator  ad  bona  administers  the  estate  of  the  minor, 
takes  care  of  his  person,  and  intervenes  in  all  his  contracts. 

The  curator  ad  litem  assists  the  minor  in  courts  of  justice,  and  acts 


58  OF  MINORS  AND  THEIR  CURATORSHIP. 

as  curator  ad  bona  in  cases  where  the  interests  of  that  curator  are  op- 
posed to  the  interests  of  the  minor. 

Seo  Art.  857. 

Art.  3G0. — The  curator  acUbona  differs  from  the  tutor  in  no  respect 
except  the  following : 

1.  The  tutor  is  appointed  to  the  minor,  whether  he  be  willing  or  not ; 
but  the  curator  ad  bona  cannot  be  appointed  to  the  minor  against  his 
will,  the  judge  being  bound  to  appoint  the  person  mentioned  to  him  by 
the  minor,  if  such  person  has,  in  every  other  respect,  the  necessary  quali- 
fications ; 

2.  Tutorship  is  natural,  testamentary,  legal  or  dative ;  curatorship 
on  the  contrary  is  only  dative ; 

3.  The  tutor  stipulates  in  every  contract,  in  the  name  of  the  minor, 
and  without  his  presence,  and  appears  for  the  minor  in  every  case  when 
his  own  interest  is  not  in  opposition  to  that  of  the  minor ;  whilst  the 
curator  ad  bona  only  assists  the  minor  in  every  contract  in  which  he  is 
concerned,  and  does  not  appear  for  him  in  courts  of  justice,  this  being 
the  particular  duty  of  the  curator  ad  litem. 

See  Art.  857. 

Art.  361. — With  the  exception  of  the  differences  mentioned  in  the 
preceding  article,  the  obligations,  powers,  rights  and  duties  of  the  cura- 
tor ad  bona  are  the  same  as  those  of  the  tutor,  and  the  rules  which  have 
been  established  in  the  chapter  which  treats  of  the  tutorship,  apply  like- 
wise to  the  curator  ad  bona  in  every  respect. 

See  Art.  857. 

Art.  362. — Although  minors,  who  have  arrived  at  the  age  of  puber- 
ty, have  a  right  to  point  out  to  the  judge  the  person  whom  they  wish  to 
be  appointed  their  curator  ad  bona,  nevertheless,  when  they  have  once 
made  their  choice,  or  when  they  have  accepted  the  curator  who  has  been 
appointed  for  them,  they  are  bound  to  keep  him  until  their  majority  or 
emancipation,  unless  they  have  a  lawful  reason  to  cause  him  to  be  re- 
moved. 

See  Art.  857. 

Art.  363. — Until  the  minor  makes  choice  of  a  curator,  the  functions 
of  the  tutor  continue  in  the  same  manner  as  if  the  minor  had  not  attained 
the  age  of  puberty. 

Sec  Art.  85*7. 

Art.  364. — The  curator  ad  litem,  as  well  as  the  curator  ad  bona,  is 
appointed  by  the  judge,  who  is  bound  to  appoint  the  person  designated 
to  him  by  the  minor,  if  such  person  has  in  every  other  respect  the  neces- 
sary qualifications. 

See  Art.  357. 

Art.  365. — The  curator  ad  litem  may  be  appointed  generally  for  all 
the  concerns  of  the  minor,  or  specially  for  some  particular  case. 

In  both  cases  the  curator  ad  litein  is  bound  only  to  take  such  an  oath 
as  that  of  an  under-tutor,  but  not  to  give  security.  The  duties  of  a 
curator  ad  litem,  specially  appointed,  are  at  an  end,  when  the  business 
for  which  he  has  been  appointed  is  terminated.  But  the  curator  ad 
litem  ajjpoiuted  generally  cannot  be  removed  but  for  some  just  cause  ; 
and  his  functions  as  well  as  those  of  the  curator  ad  bona  contiiuxe  until 
the  time  of  the  majority  or  emancipation  of  the  minav. 

.Seo  Art  D57. 


59  OF  MINORS  AND  THEIR  EMANCIPATION.  59 

Aet.  366. — The  minor  wlio  has  arrived  at  the  age  of  puberty,  and 
who  is  not  emancipated,  cannot  appear  in  a  court  of  justice  without  the 
intervention  of  a  curator  ad  litem  ;  and  if  he  shall  have  none,  it  is  the 
duty  of  the  judge  to  appoint  one  for  him,  in  order  that  the  proceedings 
may  be  regular. 

Soe  Art,  85T. 

CHAPTER   III. 

OF     EMANCIPATIOfJ. 

Art.  367. — The  minor  is  emancipated  of  right  by  marriage. 

4  A.  375 ;  Sec  7  E.  388. 

Art.  368. — The  minor  who  is  married,  can  not  only  appear  in  court 
without  the  assistance  of  a  curator,  but  can  authorize  his  wife  to  appear 
therein. 

2  A.  553  ;  5  A.  692. 

Art.  369. — The  minor,  although  not  married,  may  be  emancipated 
by  his  father,  or  if  he  has  no  father,  by  his  mother,  when  he  shall  have 
arrived  at  the  full  age  of  fifteen  years. 

This  emancipation  takes  place  by  the  declaration  to  that  cifcct  of 
the  father  or  mother,  before  a  notary  public  in  presence  of  two  witnesses. 

Stat.  \8th  March,  1847,  p.  64. — ^  1.  Whenever  a  minor  above  the 
age  of  eighteen  years  shall  be  desirous  of  being  dispensed  from  the  time  . 
prescribed  by  law  for  attaining  the  age  of  majority,  the  said  minor  shall 
present  a  petition  to  the  district  judge  having  jurisdiction,  wherein  he 
shall  set  forth  the  causes  for  which  he  wishes  to  have  the  time  for  attain- 
ing majority  dispensed  with,  and  that  he  believes  himself  fully  capable 
of  administering  and  managing  his  estate. 

^  2.  It  shall  be  the  duty  of  said  judge  to  grant  an  order  directing  the 
convocation  of  a  family  meeting  before  the  recorder,  or  any  notary  public 
of  the  parish  of  the  minor's  residence  on  a  day  fixed  in  said  order ;  a 
copy  of  the  petition  shall  be  served  on  the  tutor  of  said  minor,  citing 
him  to  appear  and  show  cause  why  said  minor  should  not  be  emanci- 
pated. 

^  3.  It  shall  be  the  duty  of  the  recorder  or  notary  public  before  whom 
said  meeting  has  been  convened,  to  grant  to  said  minor  a  certified  copy 
of  the  process  verbal  of  the  proceedings,  in  order  that  said  minor  may 
obtain  from  the  district  judge  an  order,  either  in  chambers  or  in  open 
court,  homologating  the  same 

2  K.  513. 

Art.  370. — The  orphan  minor  may  likewise  be  emancipated  by  the 
judge  (but  not  before  he  has  arrived  at  the  full  age  of  eighteen  years)  if 
the  family  meeting  called  to  that  efi"ect  be  of  opinion  that  he  is  able  to 
administer  his  property. 

The  emancipation  may  be  petitioned  for,  either  by  a  relation  of  the 
minor,  or  by  the  minor  himself. 

9  L.  671. 

Art.  371. — Tlie  minor  may  be  emancipated  against  the  will  of  hiB 
father  and  mother,  when  tliey  ill  treat  him  excessively,  refuse  him  sup- 
port, or  give  him  corrupt  examples. 


60  OF  MINORS  AND  THEIR  EMANCIPATION. 

Art.  372. — The  account  of  the  tutorship  or  curatorship  must  be 
rendered  to  the  emancipated  minor  assisted  by  a  curator  ad  hoc^  who 
shall  be  assigned  to  him  by  the  judge. 

See  2  A.  293. 

Art.  373. — The  minor  who  is  emancipated  has  the  full  administra- 
tion of  his  estate,  and  may  pass  all  acts  which  are  confined  to  such  admin- 
istration, grant  leases,  receive  his  revenues  and  moneys  which  may  be  due 
to  him,  and  give  receipts  for  the  same. 

5  A.  692;  3  L.  363. 

Art.  374. — He  canncit  bind  himself  legally  by  promise  or  obligation 
for  any  sum  exceeding  the  amount  of  one  year  of  his  revenue. 

Art.  375. — The  minor  who  is  emancipated  has  no  right  to  claim  a 
restitution  on  the  plea  of  mere  lesion  against  acts  of  simple  administra- 
tion. 

He  has  no  right  either  to  claim  a  restitution  for  mere  lesion  against 
obligations  or  promises  which  do  not  exceed  the  amount  of  one  year  of 
his  revenue. 

If,  however,  he  has  contracted  in  the  same  year,  towards  one  or  more 
creditors,  several  obligations,  each  of  which  does  not  exceed  the  amount 
of  one  year  of  his  revenue,  but  which  together  exceed  that  amount,  these 
obligations  may  be  reduced  according  to  the  discretion  of  the  judge, 
whose  duty  it  shall  be  in  such  ease  to  take  into  consideration  the  estate 
of  the  minor,  the  probity  or  dishonesty  of  the  persons  who  have  dealt 
with  him,  and  the  utility  or  inutility  of  the  exp(;nses. 

Art.  376. — The  emancipated  minor  can  neither  alienate,  afiect  nor 
mortgage  his  immovables  or  slaves  without  the  authority  of  the  judge, 
which  can  only  be  granted  with  the  advice  of  a  family  meeting,  and  in 
case  of  absolute  necessity  or  of  a  certain  advantage. 

2  A.  553 ;  9  E.  36 ;  5  N.  S.  651 ;  See  3  L.  363,  491,  567. 

Art.  377. — The  emancipated  minor  has  no  right  to  dispose  of  his 
movables  or  immovables  by  donation  inter  vivos  unless  it  be  by  mar- 
riage contract  in  favor  of  the  person  to  whom  he  is  to  be  married. 

3  L.  363,  491 ;  9  E.  36 ;  2  A  553. 

Art.  378. — The  minor,  who  is  emancipated  otherwise  than  by  mar- 
riage, cannot  appear  in  courts  of  justice  without  the  assistance  of  a  cura- 
tor ad  litem^  who  is  to  be  appointed  for  him  specially  by  the  judge  for 
that  purpose. 

Art.  379. — The  emancipated  minor  who  is  engaged  in  trade,  is  con- 
sidered as  having  arrived  to  the  age  of  majority,  for  all  the  acts  which 
have  any  relation  to  such  trade. 

5  N.  S.  651 :  9  E.  505 ;  2  E.  513 ;  See  15  L.  13 ;  1  N.  S.  537 ;  8  N.  S.  400 ;  8  N.  S.  196 ;  post.  Arts. 

1775,  1778. 

Art.  380. — The  emancipation,  whatever  be  the  manner  in  which  it 
may  have  been  effected,  may  be  revoked,  whenever  the  minor  contracts 
engagements  which  exceed  the  limits  prescribed  by  law. 

1  N.  S.  637. 

Art.  381. — The  revocation  of  emancipation  places  the  minor  under 
the  same  authority  to  which  he  was  subject  previous  to  his  being  eman- 
cipated. 

But  if  he  has  been  emancipated  against  the  will  of  his  father  and 


61  OF  THE  CURATORSHIP  OF  INSANE  PERSONS.  6l 

mother,  for  excessive  ill  treatment,  refusal  to  support  him,  or  corrupt 
examples  given  him,  another  curator  shall  be  appointed  in  the  mannei 
provided  by  law. 


TITLE  IX. 

OF  PERSONS  INSANE,  IDIOTS  AND  OTHER  PERSONS  INCAPABLE  OF 
ADMINISTERING  THEIR  ESTATES. 

CHAPTER  I. 

OP  THE  INTERDICTION  AND  CURATORSHIP  OF  PERSONS  INCAPABLE  OF  AD 
MINISTERING  THEIR  ESTATES,  WHETHER  ON  ACCOUNT  OF  INSANITY  OR  OF 
SOME  OTHER  INFIRMITY. 

Art.  382. — No  person  above  the  age  of  majority,  who  is  subject  to 
an  habitual  state  of  madness  or  insanity,  shall  be  allowed  to  take  charge 
of  his  own  person  to  administer  his  estate,  although  such  person  shall,  at 
times,  appear  to  have  the  possession  of  his  reason. 

Ar^T.  383. — Every  relation  has  a  right  to  petition  for  the  interdic- 
tion of  a  relation  ;  so  has  every  husband  a  right  to  petition  for  the  inter- 
diction of  his  wife,  and  every  wife  of  her  husband. 

Art.  384. — If  the  insane  person  has  no  relations  and  is  not  married, 
or  if  his  relations  or  consort  do  not  act,  the  interdiction  may  be  solicited 
by  any  stranger,  or  pronounced  ex  officio  by  the  judge,  after  havinj;'  heard 
the  counsel  of  the  person  whose  interdiction  is  prayed  for,  whom  it  shall 
be  the  duty  of  the  judge  to  name,  if  one  be  not  already  named  by  the 
party. 

Art.  385. — Every  interdiction  shall  be  pronounced  by  the  judge  of 
the  parish  of  the  domicil  or  residence  of  the  person  to  be  interdicted. 

16  L.  63. 

Art.  386. — The  acts  of  madness,  insanity  or  fury,  must  be  proved 
to  the  satisfaction  of  the  judge,  that  he  may  be  enabled  to  pronounce 
the  interdiction,  and  this  proof  may  be  established  as  well  by  written 
as  by  parol  evidence  ;  and  the  judge  may  moreover  interrogate  or  cause 
to  be  interrogated,  by  any  other  person  commissioned  by  him  for  that 
purpose,  the  person  whose  interdiction  is  petitioned  for,  or  cause  such 
person  to  be  examined  by  physicians,  or  other  skilful  persons,  in  order 
to  obtain  their  report  upon  oath  on  the  real  situation  of  him  who  is  stated 
to  be  of  unsound  mind. 

1  N.  S.  122. 

Art.  387. — Pending  the  issue  of  the  petition  for  interdiction  the 
judge  may,  if  he  deems  it  proper,  appoint,  for  the  preservation  of  the 
movable  and  for  the  administration  of  the  immovable  estate  of  the  de- 
fendant, an  administrator  ^?ro  tempore. 

5  A.  122. 

Art.  388. — Every  judgment,  by  which  an  interdiction  is  pronounced, 
shall  be  provisionally  executed  notwithstanding  the  appeal. 


62  OF  THE  CURATORSHIP  OF  INSANE  PERSONS. 

Art.  389. — In  case  of  appeal,  the  appellate  court  may,  if  they  deem 
it  necessary,  proceed  to  the  hearing  of  new  proofs  and  question  or  cause 
to  be  questioned,  as  above  provided,  the  person  whose  interdiction  is  pe- 
titioned for,  in  order  to  ascertain  the  state  of  his  mind. 

Art,  390. — On  every  petition  for  interdiction,  the  costs  shall  be  paid 
out  of  the  estate  of  the  defendant,  if  he  shall  be  interdicted,  and  by  the 
petitioner,  if  the  interdiction  prayed  for  shall  not  be  pronounced. 

Art.  391. — Every  sentence  of  interdiction  shall  be  published  three 
times,  in  at  least  two  of  the  newspapers  printed  in  New  Orleans,  or 
made  known  by  advertisements  at  the  door  of  the  court-house  of  the 
parish  of  the  domicil  of  the  person  interdicted,  both  in  the  French 
and  English  languages,  and  this  duty  is  imposed  upon  him  who  shall  be 
appointed  curator  of  the  person  interdicted,  and  shall  be  performed 
within  a  month  after  the  date  of  the  interdiction,  under  the  penalty  of 
being  answerable  for  all  damages  to  such  persons  as  may,  through  igno- 
rance, have  contracted  with  the  person  interdicted. 

Art.  392. — No  petition  for  interdiction,  if  the  same  shall  have  once 
been  rejected,  shall  be  acted  upon  again,  unless  new  facts,  happening 
posterior  to  the  sentence,  shall  be  alleged. 

Art.  393. — The  interdiction  takes  place  from  the  day  of  presenting 
the  petition  for  the  same. 

Art.  394. — All  acts  done  by  the  person  interdicted  from  the  date  of 
the  filing  the  petition  for  interdiction,  until  the  day  when  the  same  is 
pronounced,  are  null. 

Art.  395. — No  act  anterior  to  the  petition  for  the  interdiction  shall 
be  annulled,  except  where  it  shall  be  proved  that  the  cause  of  such  in- 
terdiction notoriously  existed  at  the  time  when  the  deeds,  the  validity  of 
which  is  contested,  were  made,  or  that  the  party  who  contracted,  with  the 
lunatic  or  insane  person  could  not  have  been  deceived  as  to  the  situation 
of  his  mind. 

Notoriously^  in  this  article,  means  that  the  insanity  was  generally 
known  by  the  persons  who  saw  and  conversed  with  the  party. 

Art.  396. — After  the  death  of  a  person,  the  validity  of  acts  done  by 
him  cannot  be  contested  for  cause  of  insanity,  unless  his  interdiction  was 
pronounced  or  petitioned  for  previous  to  the  death  of  such  person,  ex- 
cept in  cases  in  which  the  mental  alienation  manifested  itself  within  ten 
days  previous  to  the  decease,  or  in  which  the  proof  of  the  want  of  reason 
results  from  the  act  itself  which  is  contested. 

Art.  397. — Within  a  month,  to  reckon  from  the  date  of  the  judg- 
ment of  interdiction,  if  there  has  been  no  appeal  from  the  same,  or  if 
there  has  been  an  appeal,  then  within  a  month  from  the  confirmative 
sentence,  it  shall  be  the  duty  of  the  judge  of  the  parish  of  the  domicil 
or  residence  of  the  person  interdicted  to  appoint  a  curator  to  his  person 
and  estate. 

Art.  398. — This  appointment  is  made  according  to  the  same  forms 
as  the  appointment  to  the  tutorship  of  minors. 

After  the  appointment  of  the  curator  to  the  person  interdicted,  the 
duties  of  the  administrator  pro  teynjjore,  if  he  shall  not  have  been  ap- 
pointed curator,  are  at  an  end ;  and  he  shall  give  an  account  of  his  ad- 
ministration to  the  curator. 


P3  OF  THE  CURATORSHIP  OF  INSANE  PERSONS.  63 

Art.  399. — The  married  woman,  who  is  interdicted,  is  of  course  un- 
der the  curatorship  of  lier  husband.  Nevertheless  it  is  the  duty  of  the 
husband,  in  such  case,  to  cause  to  be  appointed  by  the  judge  a  curator 
ad  litcni^  who  may  appear  for  the  wife  in  every  case  when  she  may  have 
an  interest  in  opposition  to  the  interest  of  her  husband,  or  one  of  a  na- 
ture to  be  pursued  or  defended  jointly  with  his. 

Art.  400. — The  wife  may  be  appointed  curatrix  to  her  husband,  if 
she  has,  in  other  respects,  the  necessary  qualifications. 

She  is  not  bound  to  give  security. 

Art.  401. — No  one,  except  the  husband  with  respect  to  his  wife,  or 
the  wife  with  respect  to  her  husband,  the  relations  in  the  ascending  line  with 
respect  to  the  relations  in  the  descending  line,  and  vice  versa  the  rela- 
tions in  the  descending  line  with  respect  lo  the  relations  in  the  ascend- 
ing line,  can  be  compelled  to  act  as  curator  to  a  perrson  interdicted  more 
than  ten  years,  after  which  time  the  curator  may  petition  for  his  dis- 
charge. 

Art.  402. — The  person  interdicted  is,  in  every  respect,  like  the  mi- 
nor who  has  not  arrived  at  the  age  of  puberty,  both  as  it  respects  his 
person  and  estate ;  and  the  rules  respecting  the  guardianship  of  the  mi- 
nor, concerning  the  oath,  the  inventory  and  the  security,  the  mode  of 
administering,  the  sale  of  the  estate,  the  commission  on  the  revenues, 
the  excuses,  the  exclusion  or  deprivation  of  the  guardianship,  the  mode 
of  rendering  the  accounts,  and  the  other  obligations,  apply  with  respect 
to  the  curatorship  of  the  person  interdicted. 

15  L.  173. 

Art.  403.-T-When  any  one  of  the  children  of  the  person  interdicted  is 
to  be  married,  the  dowry  or  advance  of  money  to  be  drawn  from  his  es- 
tate is  to  be  regulated  by  the  judge,  with  the  advice  of  a  family  meeting. 

Art.  404. — According  to  the  sj-mptoms  of  the  disease,  under  which 
the  person  interdicted  labors,  and  according  to  the  amount  of  his  estate, 
the  judge  may  order  that  the  interdicted  person  be  attended  in  his  own 
house,  or  that  he  be  placed  in  a  bettering  house,  or  indeed  if  he  be  so 
deranged  as  to  be  dangerous,  he  may  order  him  to  be  confined  in  safe 
custody. 

Art.  405. — The  income  of  the  person  interdicted  shall  be  employed 
in  mitigating  his  sufferings,  and  in  accelerating  his  cure,  under  the  pen- 
alty against  the  curator  of  being  removed  in  case  of  neglect. 

Art.  406. — He  who  petitions  for  the  interdiction  of  any  person,  and 
fails  in  obtaining  such  interdiction,  may  be  prosecuted  for  and  sentenced 
to  pay  damages,  if  he  shall  have  acted  from  motives  of  interest  or  pas- 
sion. 

Art.  407. — Interdiction  ends  with  the  causes  which  gave  rise  to  it. 
Nevertheless  the  person  interdicted  cannot  resume  the  exercise  of  his 
rights,  until  after  the  definitive  judgment  by  which  the  repeal  of  the  in- 
terdiction is  pronounced. 

Art.  408. — Interdiction  can  only  be  revoked  by  the  same  solemnities 
which  were  observed  in  pronouncing  it. 

Art.  409. — Not  only  lunatics  and  idiots  are  liable  to  be  interdicted, 
but  likewise  all  persons  who,  owing  to  certain  infirmities,  are  incapable 
of  taking  care  of  their  persons  and  administering  their  estates. 

Such  persons  shall  be  placed  under  the  care  of  a  curator,  who  shall 


64  OF  THE  CURATORSHIP  OF  OTHER  PERSON'S. 

be  appointed  and  shall  administer  in  conformity  with  the  rules  contained 
in  the  present  chapter. 

See  7  L.  248. 

Art.  410. — The  person  interdicted  cannot  be  taken  out  of  the  State 
without  a  judicial  order,  given  on  the  recommendation  of  a  family  meet- 
ing, and  on  the  opinion  delivered  under  oath  of  at  least  two  physicians, 
that  they  believe  the  departure  necessary  to  the  health  of  the  person 
interdicted. 

Akt.  411. — There  shall  be  appointed  by  the  judge  a  superintendent 
to  the  person  interdicted,  whose  duty  it  shall  be  to  inform  the  judge,  at 
least  once  in  three  months,  of  the  state  of  the  health  of  the  person  inter- 
dicted, and  of  the  manner  in  which  he  is  treated. 

To  this  end,  the  superintendent  shall  have  free  access  to  the  person 
interdicted,  whenever  he  wishes  to  see  him. 

Art.  412. — It  is  the  duty  of  the  judge  to  visit  the  person  inter- 
dicted, whenever,  from  the  information  he  receives,  he  shall  deem  it 
expedient. 

This  visit  shall  be  made  at  times  when  the  curator  is  not  present. 

Art.  413. — Interdicting  is  not  allowed  on  account  of  profligacy  or 
prodigality. 

CHAPTER  II. 

OF    THE    OTHER    PERSONS    TO    WHOM    CURATORS    ARE    APPOINTED. 

Art.  414. — If  a  person  be  absent  from  the  State,  without  having 
appointed  any  person  to  administer  his  estate,  and  if  it  should  be  neces- 
sary to  appoint  some  one  for  that  purpose,  the  judge  shall  name  a  curator 
to  administer  such  estate,  according  to  the  rules  prescribed  in  the  title 
of  absentees. 

See  15  L.  SI. 

Art.  415. — If  a  wife  happens  to  be  pregnant  at  the  time  of  the 
death  of  her  husband,  no  guardian  shall  be  appointed  to  the  child  till 
after  his  birth ;  but,  if  it  should  be  necessary,  the  judge  may  appoint  a 
curator  for  the  preservation  of  the  rights  of  the  child  who  may  be 
born,  and  for  the  administration  of  the  estate  which  may  belong  to  such 
child. 

Art.  416. — If  a  succession  happens  to  be  without  heirs  or  executors, 
as  if  the  deceased  left  behind  him  no  relations,  nor  instituted  any  person 
his  heir  by  will,  or  he  who  has  a  right  to  succeed  has  renounced  the 
succession,  or  is  absent,  or  being  present,  deliberates  whether  he  will 
accept  the  succession,  and  in  the  mean  time  refuses  to  intermeddle,  it 
shall  be  the  duty  of  the  judge  to  appoint  a  curator  or  administrator  to 
the  estate,  for  the  preservation  of  the  estate  belonging  to  the  inheritance 
and  its  administration,  as  it  is  prescribed  in  the  chapter  of  vacant  suc- 
cessions, title  of  successions. 

Art.  417. — When  a  debtor  surrenders  his  estate  for  the  benefit  of 
his  creditors,  they  may  cause  a  curator  to  be  appointed,  whose  duty  it 
shall  be  to  take  care  of  such  estate,  or  they  may  appoint  one  or  more 
persons  under  the  name  of  syndics,  or  assignees,  to  have  the  management 
of  the  estate. 


65  OF  CORPORATIONS.  fl5 

TITLE  X. 

OF    CORPORATIONS. 
CHAPTER  I. 

OF    THE   NATURE    OF    CORPORATIONS,    OF    THEIR    USE    A  CD    KINDS. 

Art.  418. — A  corporation  is  an  intellectual  body,  created  by  law, 
composed  of  individuals  united  under  a  common  name,  the  members  of 
which  succeed  eacli  other,  so  that  the  body  continues  always  the  same, 
notwithstanding  the  change  of  the  individuals  which  compose  it,  and 
which,  for  certain  purposes,  is  considered  as  a  natural  person. 

2  R.  209,  224,  529. 

Art.  419. — The  use  of  corporations  is  to  contribute  by  the  union 
and  assistance  of  several  persons,  to  the  promotion  of  some  object  of 
general  utility,  although  they  be  at  the  same  time  established  for  the 
advantage  of  those  who  are  members  of  such  corporations. 

See  13  L.  497 ;  9  L.  .397.  ' 

Art.  420. — Corporations  are  of  two  kinds  :  political  and  private. 

Political  corporations  are  those  which  have  principally  for  their 
object  the  administration  of  a  portion  of  the  State,  and  to  whom  a  part 
of  the  powers  of  government  is  delegated  to  that  effect. 

All  others  are  private  corporations. 

8  A.  294  ;  See  8  R.  196. 

Art.  421. — Private  corporations  are  divided  into  civil  and  religious, 
and  this  distinction  results,  as  well  from  the  quality  of  the  persons  who 
generally  compose  these  kinds  of  corporations,  as  from  the  difference  of 
the  object  of  their  establishment. 

See  9  L.  897. 

Art.  422. — Civil  corporations  are  those  which  relate  to  temporal 
police ;  such  are  the  corporations  of  the  cities,  the  companies  for  the 
advancement  of  commerce  and  agriculture,  literary  societies,  colleges  or 
universities  founded  for  the  instruction  of  youth,  and  the  like.  Religious 
corporations  are  those  whose  establishment  relates  only  to  religion ; 
such  are  the  congregations  of  the  different  religious  persuasions. 

See  2  K.  209. 

CHAPTER  11. 

OF   THE    RIGHTS    AND    PRIVILEGES    OF    CORPORATIONS,    AND    OF    THEIR 
INCAPACITIES. 

Art.  423. — Corporations  must  not  only  be  authorized  by  the  legis- 
lature, but  a  name  must  be  given  to  them ;  and  it  is  in  that  name  they 
must  sue  or  be  .sued,  and  do  all  their  legal  acts,  although  a  slight  alter- 
ation in  this  name  be  not  important. 

2  N.  8.  639;  8  N.  8.  470;  12  L.  444;  3  A,  541 ;  6  A.  642;  See  19  L.  865;  2  R.  190. 


(J6  OF  CORPORATIONS. 

Art.  424. — Corporations  legally  established  are  substituted  for 
persons,  and  their  union  which  renders  common  to  all  those  who  com- 
pose them,  their  interests,  their  rights  and  their  privileges,  is  the  reason 
why  they  are  considered  as  one  single  whole.  Hence  it  follows  that 
they  may  possess  an  estate,  and  have  a  common  treasury  for  the  purpose 
of  depositing  their  money ;  that  they  are  capable  of  receiving  legacies 
and  donations  ;  that  they  ma}^  make  valid  contracts,  obligate  others  and 
obligate  themselves  towards  others ;  exercise  the  rights  which  belong 
to  tliem  ;  manage  their  own  affiiirs  ;  appear  in  courts  of  justice,  and  even 
enact  statutes  and  regulations  for  their  own  government,  provided  such 
statutes  and  regulations  be  not  contrary  to  the  laws  of  the  political 
society  of  which  they  are  members. 

2  A.  89T ;  3  A.  19 ;  See  13  L.  497 ;  14  L.  305 ;  2  E.  209. 

Art.  425. — The  right  of  succession  also  is  inherent  to  the  nature  of 
corporations  ;  so  that  as  long  as  they  exist  they  transmit  to  their  suc- 
cessors their  rights  and  their  property. 

The  right  of  electing,  in  the  manner  prescribed  by  law,  now  mem- 
bers in  the  stead  of  those  who  have  ceased  to  be  members  of  the  corpo- 
ration, is  a  right  impliedly  attached  to  the  constitution  of  every 
regularly  established  corporation. 

Art.  426. — Corporations  are  intellectual  beings,  different  and  dis 
tinct  from  all  the  persons  who  compose  them. 

9  L.  39T. 

Art.  427. — The  estate  and  rights  of  a  corporation  belong  so  com 
pletely  to  the  body,  that  none  of  the  individuals  who  compose  it  can 
dispose  of  any  part  of  them. 

In  this  request  the  thing  belonging  to  a  body  is  very  different  from 
a  thing  which  is  common  to  several  individuals,  as  respects  the  share 
■p  hich  every  one  has  in  the  partnership  which  exists  between  them 

9  L.  397. 

For  "  reque.sf'  read  "  respect." 

Art.  428. — According  to  the  above  rule,  what  is  due  to  a  corpora- 
tion is  not  due  to  any  of  the  individuals  who  compose  it,  and  vice  versa. 

A  creditor  of  a  corporation  cannot  therefore  compel  any  of  the 
members  thereof  to  pay  what  may  be  due  to  him  by  the  corporation ; 
he  can  demand  his  payment  of  the  corporation  only,  through  their  pre- 
sident, syndic,  or  attorney  in  fact,  and  he  can  seize  no  other  effects  but 
such  as  belong  to  the  corporation,  provided  the  debt  has  been  contracted 
by  the  corporation  through  their  president,  syndic,  or  attorney  in  fact ; 
for  if  all  the  individuals  who  compose  the  corporation  have  signed  the 
deed  personally,  every  one  of  them  may  be  compelled  to  make  payment, 
eitlier  for  his  individual  portion  or  i?i  solidicm,  when  it  has  been  sti- 
pulated expressly  that  the  debt  was  contracted  in  solidum. 

13  L.  461 ;  3  N.  S.  476 ;  5  L.  461 ;  9  L.  397. 

Art.  429. — From  the  circumstance  that  a  corporation  is  an  intel- 
lectual being,  it  follows  that  they  cannot  personally  transact  all  that 
they  have  a  right  legally  to  do,  as  has  been  above  observed ;  wherefore 
it  becomes  necessary  for  every  corporation  to  appoint  some  of  their 
members  to  whom  they  may  intrust  the  dii'ection  and  care  of  their 


67  OF  CORPORATIONS  67 

affairs,  under  the  name  of  mayor,  president,  syndics,  directors  c  r  others, 
according  to  the  statutes  and  qualities  of  such  corporation. 

3  A.  94 ;  See  5  L.  4G1 ;  1  R.  4T0 ;  2  R.  200. 

Art.  430. — The  attorneys  in  foct  or  officers  thus  appointed  by  cor- 
porations for  the  direction  and  care  of  their  affairs,  have  their  respec- 
tive duties  pointed  out  by  their  nomination,  and  exercise  them  accord- 
ing to  the  general  regulations  and  particular  statutes  of  the  corporation 
of  which  they  are  the  heads. 

These  attorneys  or  officers,  by  contracting,  bind  the  corporations  to 
which  they  belong  in  such  things  as  do  not  exceed  the  limits  of  the 
administration  which  is  intrusted  to  them ;  their  act  is  supposed  to  be 
the  act  of  the  corporation. 

If  the  powers  of  such  attorneys  or  officers  have  not  been  expressly 
determined,  they  are  regulated  in  the  same  manner  as  those  of  other 
agents. 

7  R.  459 ;  3  A.  294 ;  See  2  R.  209,  244 ;  8  R.  196 ;  5  L.  463. 

Art.  431. — Corporations  being  intellectual  persons,  they  are  sub- 
ject to  various  kinds  of  incapacities,  some  of  which  are  inherent  to  their 
nature,  others  are  established  by  law. 

rR.459. 

Art.  432. — A  corporation  cannot  be  administrator ,  guardian,  or 
testamentary  executor,  nor  fulfil  any  other  office  of  personal  trust.  A 
corporation  cannot  be  imprisoned,  for  its  existence  being  ideal,  no  body 
can  arrest  or  confine  it. 

5  L.  461. 

Art  433. — In  the  same  manner  a  corporation  cannot  bring  an  action 
for  assault  and  battery  or  for  other  injuries  of  that  nature ;  for  a  cor- 
poration can  neither  beat  nor  be  beaten  in  its  corporated  capacity. 

5  L.  461 ;  7  R  459. 

Art.  434. — A  corporation  cannot  commit  tlie  crime  of  treason,  or 
any  other  crime  or  offence,  in  its  corporate  capacity,  although  its  mem- 
bers may  be  guilty  of  those  crimes  in  their  individual  and  respective 
capacities. 

7  R.  459. 

Art.  435. — In  corporations  the  act  of  the  majority  is  considered  as 
the  act  of  the  whole. 

See  9  L.  897 ;  8  N.  S.  4TC. 

Art.  436. — The  statutes  and  regulations  which  corporations  enact 
for  their  police  and  discipline,  are  obligatory  upon  all  their  respective 
members  who  arc  bound  to  obey  them,  provided  such  statutes  contain 
nothing  contrary  to  the  laws,  to  public  libert}^,  or  tq  the  interest  of 
others. 

1  R.  470;  3  A  19. 

Art.  437. — Corporations  unauthorized  by  law  or  by  an  act  of  the 
legislature,  enjoy  no  public  character,  and  cannot  appear  in  a  court  of 
justice,  but  in  tlie  individual  name  of  all  the  members  who  compose  it, 
and  not  as  a  political  body ;  although  these  corporations  may  acquire 
and  possess  estates,  and  have  common  interests  as  well  as  all  other  pri- 
vate societies. 

1  R.  470  i  8  A.  541 ;  See  12  R.  42S. 


68  OF  CORPORATIONS. 

CHAPTER  III. 

OF    TIIE    DISSOLUTION    OF    CORrOUATIONS 

AuT.  438. — A  corporation  legally  established  may  be  dissolved : 

1.  By  an  act  of  the  legislature,  if  they  deem  it  necessary  or  con- 
venient to  the  public  interest ;  provided  that  when  the  act  of  incorpo- 
ration imports  a  contract,  on  the  faith  of  -which  individuals  harve  ad- 
vanced money  or  engaged  their  property,  it  cannot  be  repealed  without 
providing  for  the  reimbursement  of  the  advances  made,  or  making  full 
indemnity  to  such  individuals ; 

2.  By  the  forfeiture  of  their  charter,  when  the  corporation  abuse 
their  privileges,  or  refuse  to  accomplish  the  conditions  on  which  such 
privileges  were  granted,  in  which  case  the  corporation  becomes  extinct 
by  the  effect  of  the  violation  of  the  conditions  of  the  act  of  incorpora- 
tion. 

See  9  L.  506 ;  13  L.  497 ;  14  L-  895. 


BOOK  II. 

OF  THINGS  AND  OF  THE  DIFFERENT  MODIFICATIONS 
OF  PROPERTY. 


TITLE  I. 
OF    THINGS. 

CHAPTER  I. 

OF     THE     DIVISION     OF     THINGS. 

Art.  439. — The  word  estate  in  general  is  applicable  to  any  thing 
of  which  riches  or  fortune  may  consist.  This  word  is  likewise  relative 
to  the  word  thing,  which  is  the  second  object  of  jurisprudence,  the  rules 
of  which  are  aj)plicable  to  persons,  things,  and  actions. 

Art.  440. — Things  are  either  common  or  public  ;  they  either  belong 
to  corporations,  or  they  are  the  property  of  individuals. 

Art.  441. — Things  which  are  common,  are  those  of  which  the  pro- 
perty belongs  to  nobody  in  particular,  and  which  all  men  may  freely 
use,  conformably  to  the  use  for  which  nature  has  intended  them,  such 
as  air,  running  water,  the  sea  and  its  shores. 

Art.  442. — Seashore  is  tliat  space  of  land  over  which  the  waters 
of  the  sea  are  spread  in  the  highest  water,  during  the  winter  season. 

Art.  443. — From  the  public  use  of  the  sea-shores  it  follows  that 
every  one  has  a  right  to  build  cabins  thereon  for  slielter,  and  likewise 
to  land  there,  cither  to  fish  or  to  sliclter  themselves  from  the  storm,  to 
moor  ships,  to  dry  nets,  and  the  like,  provided  no  damage  arise  from 
the  same  to  the  buildings  and  erections  made  by  the  owners  of  the  ad- 
joining property. 

Art.  444. — Public  things  are  those,  the  property  of  which  is  vested 
in  a  whole  nation,  and  the  u.sc  of  which  is  allowed  to  all  the  members  of 
the  nation  :  of  this  kind  are  navigable  rivers,  sea-ports,  roads,  harbors, 
highways,  and  tlie  bed  of  rivers,  as  long  as  the  same  is  covered  with 
water. 


70  OF  THINGS. 

Hence  it  follows  that  every  man  Las  a  right  freely  to  fish  in  the 
rivers,  ports,  roads  and  harbors. 

18  L.  278;  3  A.  482, 

Art.  445. — Things  which  are  for  the  common  use  of  a  city  or  other 
place,  as  streets  and  public  squares,  are  likewise  public  things. 

See  18  L.  132  ;  5  L.  15T. 

Art.  446. — The  use  of  the  banks  of  navigable  rivers  or  streams  is 
public ;  accordingly  every  one  has  a  right  fi-eely  to  bring  his  vessels  to 
land  there,  to  make  fast  the  same  to  the  trees  which  are  there  planted, 
to  unload  his  vessels,  to  deposit  his  goods,  to  dry  his  nets,  and  the  like. 

Nevertheless  the  property  of  the  river  banks  belongs  to  those  who 
possess  the  adjacent  lands. 

6  M.  231 ;  5  L.  132 ;  3  L.  55T ;  11  L.  170 ;  13  L.  326 ;  18  L.  305 ;  8  E.  211 ;  6  A.  451 ;  See  18  L.  123. 

Art.  447. — The  provisions  of  the  ancient  laws  concerning  the  dis- 
tinction of  things  into  things  holy,  sacred  and  religious ;  and  the  nature 
and  inalienability  of  these  kinds  of  things  are  abolished  ;  and  nothing 
prevents  the  corporations  or  congregations  to  which  these  things  belong, 
from  alienating  them,  provided  it  be  done  in  the  manner  and  under  the 
restrictions  prescribed  by  their  acts  of  incorporation. 

Art.  448. — The  banks  of  a  river  or  stream  are  understood  to  be 
that  which  contains  it  in  its  ordinary  state  of  high  water  ;  for  the  nature 
of  the  banks  does  not  change,  although  from  some  cause  they  may  be 
overflowed  for  a  time. 

Nevertheless  on  the  borders  of  the  Mississippi,  where  there  are 
levees,  the  levees  shall  form  the  banks. 

3  L.  577 ;  6  A.  451 ;  See  17  L.  573 ;  18  L.  295. 

Art.  449. — Things  which  belong  in  common  to  the  inhabitants  of 
cities  and  other  places,  are  of  two  kinds  : 

Common  property,  to  the  use  of  which  all  the  inhabitants  of  a  city 
or  other  place,  and  even  strangers,  are  entitled  in  common,  such  as  the 
streets,  the  public  walks,  the  quays  : 

And  common  property  which,  though  it  belongs  to  the  corporation, 
is  not  for  the  common  use  of  all  the  inhabitants  of  the  place,  but  may 
be  employed  for  their  advantage  by  the  administrators  of  its  revenues. 

See  5  L.  132. 

Art.  450. — Private  estates  and  fortunes  are  those  things  which  bo- 
long  to  individuals. 

6  R.  488. 

Art.  45 1 . — Things  are  divided,  in  the  second  place,  into  corporeal 
and  incorporeal : 

Corporeal  things  are  such  as  are  made  manifest  to  the  senses — which 
we  may  touch  or  take,  which  have  a  body,  whether  animate  or  inani- 
mate. Of  this  kind  are  fruits,  corn,  gold,  silver,  clothes,  furniture, 
lands,  meadows,  woods  and  houses ; 

Incorporeal  things  are  such  as  are  not  manifest  to  the  senses,  and 
which  are  conceived  only  by  the  understanding,  such  as  the  rights  of 
inheritance,  services  and  obligations. 


7^  OF  THINGS.  71 

Art.  452. — The  third  and  last  division  of  things  is  into  movables 
and  immovables. 

CHAPTER  II. 

OF  IMMOVABLES. 

Art.  453. — Immovable  things  are  in  general,  such  as  cannot  either 
move  themselves  or  be  removed  from  one  place  to  another. 

But  this  definition,  strictly  speaking,  is  applicable  only  to  such 
things  as  are  immovable  by  their  own  nature,  and  not  to  such  as  are  so 
only  by  the  disposition  of  the  law. 

Art.  454. — There  are  things  immovable  by  their  nature,  others  by 
their  destination,  and  others  by  the  object  to  which  they  are  applied. 

4  A,  120;  2  A.  451. 

Art.  455. — Lands  and  buildings,  or  other  constructions,  whether 
they  have  their  foundations  in  the  soil  or  not,  are  immovable  by  their 
nature. 

4  A.  126;  5  A.  113 ;  See  12  E.  225. 

Art.  45G. — Standing  crops,  and  the  fruits  of  trees  not  gathered,  and 
trees  while  standing,  arc  likewise  immovable,  and  are  considered  as 
part  of  the  laud  to  which  they  are  attached. 

As  soon  as  the  crop  is  cut  down,  and  the  fruits  gathered,  or  the 
trees  cut  down,  although  not  yet  carried  oif,  they  are  movables. 

If  a  part  only  of  the  crop  be  cut  down,  that  part  only -is  movable. 

4  A.  12T;  C  A.  2C4 ;  9  R.  256;  2  A.  451. 

Art.  457. — The  fruits  of  an  immovable,  gathered  or  produced  since 
it  was  under  seizure,  are  considered  as  making  part  thereof,  and  inure 
to  the  benefit  of  the  person  making  the  seizure. 

9  R.  256;  4  A.  126  ;  5  A.  225;  2  A.  451. 

Art.  458. — The  pipes  made  use  offer  the  purpose  of  bringing  water 
to  a  house  or  other  inheritance,  are  immovable,  and  are  a  part  of  the 
tenement  to  which  they  arc  attached. 

Art.  459. — Things  which  the  owner  of  a  tract  of  land  has  placed 
upon  it  for  its  service  and  improvement,  are  immovable  by  destination. 

Thus  the  following  things  are  immovable  by  destination,  when  they 
have  been  placed  by  the  owner  for  the  service  and  improvement  of  a 
tract  of  land,  to  wit : 

Cattle  intended  for  cultivation  ; 

Implements  of  husbandry  ; 

Seeds,  plants,  fodder  and  manure  ; 

Pigeons  in  a  pigeon  house ; 

Bee  hives ; 

Mills,  kettles,  alembics,  cisterns,  vats,  and  other  machinery  made  use 
of  in  carrying  on  the  plantation  works  ; 

The  utensils  necessary  for  working  cotton,  and  saw  mills  taffia  dis- 
tilleries, sugar  refineries  and  other  manufactures. 


72  OF  THINGS. 

All  such  movables  as  the  owner  has  attached  permanently  to  the 
tenement  or  to  the  building,  are  likewise  immovable  by  destination. 

2  A.  451 ;  4  A.  126 ;  5  A.  717;  6  A.  264;  6  E.  424 

Art.  460. — The  owner  is  supposed  to  have  attached  to  his  tenement 
or  building  for  ever  such  movables  as  are  affixed  to  the  same  with 
plaster,  or  mortar,  or  such  as  cannot  be  taken  off  without  being  broken 
or  injured,  or  without  breaking  or  injuring  the  part  of  the  building  to 
which  they  are  attached. 

6R.  424;  5  A.  717. 

Art.  461. — Slaves,  though  movables  by  their  nature,  are  considered 
as  immovables,  by  the  operation  of  law. 

1  A.  897;  6  A.  362. 

Art.  462. — Incorporeal  things,  consisting  only  in  a  right,  are  not  of 
themselves  strictly  susceptible  of  the  quality  of  movables  or  immov- 
ables ;  nevertheless  they  are  placed  in  the  one  or  the  other  of  these 
classes,  according  to  the  object  to  which  they  relate,  and  the  rules  here- 
inafter established. 

Art.  463. — The  following  are  considered  as  immovable,  from  the 
object  to  which  they  apply : 

The  usufruct  and  use  of  immovable  things ; 

A  servitude  established  on  real  estate ; 

An  action  for  the  recovery  of  an  immovable  estate  or  an  entire 
succession. 

2  E.  1 ;  12  K.  284. 


CHAPTER  III. 

OF    MOVABLES. 

Art.  464. — Estates  are  movable  either  by  their  nature  or  by  the  dis 
position  of  the  law. 

6  K.  424  ;  See  4  N.  S.  6M. 

Art.  465. — Things  movable  by  their  nature  are  such  as  may  be  car- 
ried from  one  place  to  another,  whether  they  move  by  themselves,  as 
cattle,  or  cannot  be  removed  without  an  extraneous  power,  as  inanimate 
things. 

6  E.  424. 

Art.  466. — Obligations  and  actions,  the  object  of  which  is  to  recover 
money  due  or  movables,  altliough  these  obligations  are  accompanied  with 
a  mortgage  ;  obligations  which  have  for  their  object  a  specific  perform- 
ance ;  and  those  which  from  their  nature  resolve  themselves  into  dam- 
ages ;  shares  or  interests  in  banks  or  companies  of  commerce,  or  industry 
or  other  speculations,  although  such  companies  be  possessed  of  immo- 
vables depending  upon  such  enterprises,  such  shares  or  interests  are  con- 
sidered as  movables  with  respect  to  every  associate  as  long  only  as  the 
society  is  in  existence.  But  as  soon  as  the  society  is  dissolved,  the  right 
whicli  each  member  has  to  the  division  of  the  immovables  belonging  to 
it,  produces  an  immovable  action. 


73  OF  THINGS.  73 

In  the  class  of  things  movable  by  the  determination  of  the  law,  are 
also  considered  perpetual  rents  and  annuities,  ■whetlier  they  be  founded 
on  a  price  in  money  or  on  the  price  or  the  condition  of  the  alienation  of 
an  immovable. 

2  Pv.  1 ;  12  K.  234 

Art.  467. — All  things  corporeal  and  incorporeal,  which  have  not  the 
character  of  immovables  by  their  nature  or  by  the  disposition  of  the  law, 
according  to  the  rules  laid  down  in  this  title,  arc  considered  as  movables. 

2  Pv.  1. 

Art.  4G8. — Materials  arising  from  the  demolition  of  a  building,  those 
which  arc  collected  for  the  jmrpose  of  raising  a  new  building,  are  mov- 
ables, until  they  have  been  made  use  of  in  raising  a  new  building. 

But  if  the  materials  have  been  separated  from  the  house  or  other 
edifice,  only  for  the  purpose  of  having  it  repaired  or  added  to,  and  with 
the  intention  of  replacing  them,  they  preserve  the  nature  of  immovables, 
and  are  considered  as  such. 

6  R.  421 ;  2  A.  451. 

Art.  4G9. — The  -word.  f70->utnre  made  use  of  in  the  provision  of  the 
law,  or  in  the  conventions  or  acts  of  persons,  comprehends  only  such  fur- 
niture as  is  intended  for  the  use  and  ornament  of  apartments,  but  not 
libraries  which  happen  to  be  there  nor  plate. 

Art.  470. — The  expression  of  movable  goods,  that  of  movables  or 
movable  ejects,  employed  as  above  stated,  comprehends  generally  all 
that  is  declared  to  be  movable,  according  to  the  rules  laid  down  in  tliis 
chapter. 

Art.  471. — The  sale  or  gift  of  a  house  ready  furnished,  includes 
only  such  furniture  as  is  in  the  house. 

Art.  472. — The  sale  or  gift  of  a  house  ivith  all  that  is  in  it,  does 
not  include  the  money,  nor  the  debts,  or  other  rights,  the  titles  of  which 
may  be  in  the  house ;  all  other  movable  effects  are  included. 

4  N.  S.  Cfrl. 


CHAPTER  IV. 

of  estates  considered  in  their   relation   to    those    who    possess 

thAi. 

Art.  473. — Things,  in  their  relation  to  those  who  possess  or  enjoy 
them,  arc  divided  into  two  classes ;  those  which  are  not  susceptible  of 
ownership,  and  those  which  arc. 

Art.  474. — Among  those  wliich  arc  not  susceptible  of  ownership, 
there  are  some  wliich  can  never  become  the  object  of  it,  as  things  in  com- 
mon, of  wliich  all  men  have  the  enjoyment  and  use. 

There  are  things,  on  the  contrary,  which,  though  naturally  suscep- 
tible of  ownership,  may  lose  this  quality  in  consequence  of  their  being 
applied  to  some  public  purpose,  incompatible  with  private  ownership,  but 
which  resume  this  quality  as  soon  as  they  cease  to  be  applied  to  that 
purpose,  such  as  the  high  roads,  streets  and  public  places. 

Art.  475. — Things  susceptible  of  ownership,  arc  all  those  which  are 
held  by  individuals,  and  wliich  may  be  alienated  by  sale,  exchange,  do- 
nation, prescription  or  otherwise. 


74  OF  OWNERSHIP. 

Art.  476. — Individuals  have  the  free  disposal  of  the  property  which 
belongs  to  them,  under  the  restrictions  established  by  law. 

But  the  property  of  the  corporations  of  cities,  or  other  corporations, 
are  administered  according  to  laws  and  regulations  which  are  peculiar 
to  them,  and  can  only  be  alienated  in  the  manner  and  under  the  restric- 
tions prescribed  in  their  several  acts  of  incorporation. 

Akt.  477. — The  successions  of  persons  who  die  without  heirs,  or 
which  are  not  claimed  by  those  having  a  right  to  them,  belong  to  the 
State. 

See  5  E.  9;  12  E.  584. 

Art.  478. — The  national  domain,  properly  speaking,  comprehends  all 
the  landed  estate  and  all  the  rights  which  belong  to  the  nation,  whether 
the  latter  be  in  the  actual  enjoyment  of  the  same,  or  have  only  a  right 
to  re-enter  on  them. 

Art.  479. — There  may  be  different  kinds  of  rights  to  estates  : 

1 .  A  full  and  entire  property ; 

2.  A  right  to  the  mere  use  and  enjoyment ; 

3.  A  right  to  certain  services  due  upon  the  estate. 


TITLE  II. 

OF  OWNERSHIP. 
CHAPTER  I. 

GENERAL    PRINCIPLES. 

Art.  480. — Ownership  is  the  right  by  which  a  thing  belongs  to  some 
one  in  particular,  to  the  exclusion  of  all  other  persons. 

6E.  488;  See  12  E.  474. 

Art.  48 1 . — The  ownership  of  a  thing  is  vested  in  him  who  has  the 
immediate  dominion  of  it,  and  not  in  him  who  has  a  mere  beneficiary 
right  in  it. 

Art.  482. — Ownershij)  is  divided  into  perfect  and  imperfect. 

Ownership  is  perfect,  when  it  is  perpetual,  and  when  the  thing,  which 
is  the  subject  of  it,  is  unencumbered  with  any  charges  towards  any  other 
person  than  the  owner. 

On  the  contrary,  ownership  is  imperfect,  when  it  is  to  terminate  at 
a  certain  time  or  on  a  condition,  or  if  the  thing,  which  is  the  subject  of 
it,  being  an  immovable,  is  charged  with  any  real  right  towards  a  third 
person,  as  an  usufruct,  use  or  service. 

When  an  immovable  is  subject  to  an  usufruct,  the  owner  of  it  is  said 
to  possess  the  mere  ownershij^. 

2  A.  80. 

Art.  483. — Absolute  ownership  gives  the  right  to  enjoy  and  to  dis- 
pose of  one's  property  in  the  most  unlimited  manner,  provided  it  is  not 
used  in  a  waj  prohibited  by  laws  or  ordinances. 


75  OF  OWNERSHIP.  75 

Persons  who  reside  out  of  the  State,  cannot  dispose  of  the  property 
they  possess  here,  in  a  manner  diflPerent  from  that  prescribed  by  its  laws 

Sc«  2  X  659 ;  12  E.  593. 

Art.  484. — Imperfect  ownership  only  gives  the  right  of  enjoying 
and  disposing  of  property,  when  it  can  be  done  without  injuring  the 
rights  of  others,  that  is,  of  those  who  may  have  real  or  other  rights  to 
exercise  upon  the  same  property. 

2  A.  80. 

Art.  485. — The  right  of  ownership  necessarily  supposes  a  person  in 
whom  this  right  exists,  whether  the  owner  be  a  real  person,  such  as  an  in- 
dividual, or  a  civil  or  intellectual  person,  such  as  a  corporation. 

Art.  48G. — It  is  of  the  essence  of  the  right  of  ownership  that  it  can- 
not exist  in  two  persons  for  the  whole  of  the  same  thing  but  they  may 
be  owners  of  the  same  thing  in  common,  and  each  for  the  part  which  he 
may  have  therein. 

Art.  487. — He  who  has  once  acquired  the  ownership  of  a  thing  by 
one  title,  cannot  afterwards  acquire  it  by  another  title,  unless  it  be  to 
supply  a  deficiency  in  the  first  title. 

On  the  other  hand,  nothing  prevents  a  thing  due  to  a  person  under 
one  title,  from  being  also  due  to  him  mider  another,  as  for  example,  when 
a  thing  has  been  sold,  and  is  afterwards  bequeathed  to  the  same  person 
by  the  owner. 

Art.  488. — The  ownership  and  the  possession  of  a  thing,  are  entirely 
distinct. 

The  right  of  ownership  subsists  independently  of  the  exercise  of  it. 
The  owner  is  not  less  the  owner  because  he  performs  no  act  of  owner- 
ship, or  because  he  is  disabled  from  performing  any  such  acts,  or  even  be 
cause  another  performs  such  acts,  without  the  knowledge  or  against  the 
will  of  the  owner. 

But  the  owner  exposes  himself  to  the  loss  of  his  right  of  ownership 
in  a  thing,  if  he  permits  it  to  remain  in  the  possession  of  a  third  person, 
for  a  time  sufficient  to  enable  the  latter  to  acquire  it  by  prescription. 

Art.  489. — No  one  can  be  divested  of  his  property,  unles.s  for  some 
purpose  of  public  utility,  and  on  consideration  of  an  equitable  and  pre- ' 
vious  indemnity,  and  in  a  manner  previously  prescribed  by  law. 

By  an  equitable  indemnity  in  this  case  is  understood,  not  only  a 
payment  for  the  value  of  the  thing  of  which  the  owner  is  deprived,  but 
a  remuneration  for  the  damages  which  may  be  caused  thereby. 

See  9  L.  205. 

No.  174. — A71  Act  I0  amcjid  an  Act  to  provide  for  the  expropria- 
tion of  Lcauh  for  Railroada,  and  other  works  of  pi^djRc  utility. — ^  1. 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  State 
of  Louisiana  in  General  Assembly  convened,  That  the  first  section  of  an 
act  to  provide  for  the  expropriation  of  land  for  railroads,  and  other  works 
of  public  utility,  approved  March  the  eighth,  one  thousand  eight  hundred 
and  fifty-two,  be,  and  the  same  is  hereby  amended  as  to  read  thus  : — That 
whenever  any  corporation  constituted  under  the  laws  of  this  State,  for 


75  OF  OWNERSHIP. 

the  construction  of  a  railroad,  or  plank-road,  or  a  turnpike-road,  or  a 
canal  for  navigation,  or  for  the  purpose  of  transmitting  intelligence  by 
magnetic  telegraph,  cannot  agree  with  the  owner  or  owners  of  any 
land  which  may  be  wanted  for  the  construction  of  such  road,  canal,  or 
magnetic  telegraph,  or  the  works  connected  therewith,  it  shall  be  law- 
ful for  such  corporation  to  apply  by  petition  to  the  judge  of  the  district 
court  in  which  such  land  may  be  situated ;  or  if  the  land  extends  into 
two  districts,  to  the  judge  of  the  district  in  whieli  the  owner  thereof 
resides,  and  if  the  owner  does  not  reside  in  either  district,  then  to  the 
judge  of  either  district ;  describing  the  lands  necessary  for  their  pur- 
poses, with  a  plan  of  the  same,  and  a  statement  of  the  improvements 
thereon,  if  any,  and  the  name  of  the  owners  thereof,  if  known  and  pre- 
sent in  the  State,  with  a  prayer  that  the  land  be  adjudged  to  such  cor- 
poration, upon  the  payment  to  the  owner  of  all  such  damage  as  he  may 
sustain  in  consequence  of  the  expropriation  of  his  land  for  such  public 
work.  That  all  claims  for  land,  or  damages  to  the  owner,  caused  by 
its  appropriation  or  use  for  the  construction  of  any  of  said  public  works, 
shall  be  barred  by  two  years  prescription,  which  shall  commence  to  run 
from  the  date  at  which  the  laud  was  actually  occupied  and  used  for  the 
construction  of  said  works. 

§  2.  Be  it  further  enacted,  &c.,  In  all  cases  where  any  corporation 
shall  commit  such  trespass,  or  do  any  thing  for  which  an  action  lies, 
shall  be  liable  to  be  sued  in  the  parish  where  such  damage  is  done,  or 
trespass  committed. 

Approved,  April  25th,  1853. 

Art.  490. — The  ownership  of  a  thing,  whether  it  be  moveable  or 
immovable,  carries  with  it  the  right  to  all  that  the  thing  produces,  and 
to  all  that  becomes  united  to  it,  either  naturally  or  artificially. 

This  is  called  the  right  of  accession. 

See  15  L.  122. 


CHAPTER  II. 

OF  THE  RIGHT  OF  ACCESSION  TO  WHAT  IS  FROnUCED  BY  THE  THING. 

Art.  491. — Fruits  of  the  earth,  whether  spontaneous  or  cultivated; 
civil  fruits,  that  is,  the  revenues  yielded  by  property  from  the  operation 
of  the  law  or  by  agreement ;  children  of  shaves,  and  the  young  of  ani- 
mals, belong  to  the  proprietor  by  right  of  accession. 

3  A.  600;  6  A.  634. 

Art.  492.—  The  children  of  slaves  and  the  young  of  animals  belong 
to  the  proprietor  of  the  mother  of  them,  b}''  right  of  accession. 

Art.  493. — Tlie  fruits  produced  by  the  thing  belong  to  its  ownei 
although  they  may  have  been  produced  by  the  work  and  labor  of  a  third 
person,  or  from  seeds  sown  by  him,  on  the  owner's  reimbursing  such 
person  his  expenses. 

2  A.  7C2. 

Ar.t.  494. — The  produce  of  the  thing  docs  not  belong  to  the  simple 


77  OF  OWNERSHIP.  77 

possessor,  and  must  be  returned  with  the  thing  to  the  owner  who  claims 
the  same,  unless  the  possessor  held  it  bona  fide.  , 

Art.  495. — He  is  a  bona  fide  possessor  who  jiossesses  as  owner,  by 
virtue  of  an  act  sufficient  in  terms  to  transfer  property,  the  defects  of 
which  he  was  ignorant  of.  He  ceases  to  be  a  bona  fide  possessor,  from 
the  moment  these  defects  are  made  known  to  him,  or  are  declared  to 
him  by  a  suit  instituted  for  the  recovery  of  the  thing  by  the  proprietor. 

2N.  S.  5M;  TN.  S.  050;  6L.  265;  10  K.  ITS;  CA.356;  See  11  M.  695;  IN.  8.  405;  2  N.  S.  555. 


CHAPTEE  III. 

OF  THE  KIGHT  OF  ACCESSION  TO  WHAT  UNITES  OR  INCORPORATES  ITSELF  TO 

THE  THING. 

Art.  496. — All  that  which  becomes  united  to,  or  incorporated  with 
property,  belongs  to  the  owner  of  such  property,  according  to  the  rules 
hereafter  established. 

See  18  L.  122. 

Section  I. — Of  the  Right  of  Accession.,  i?i  rclatioji  to  immovables. 

Art.  497. — The  property  of  the  soil  carries  with  it  the  property  of 
all  which  is  directly  above  and  under  it. 

The  owner  may  make  upon  it  all  the  plantations,  and  erect  all  the 
buildings  which  he  thinks  proper,  under  the  exceptions  established 
in  the  title  oi  servitudes  or  services. 

He  may  construct  below  the  soil  all  manner  of  works,  digiring  as 
deep  as  he  deems  convenient,  and  draw  from  them  all  the  benefit.?  which 
may  accrue,  under  such  modifications  as  may  result  from  the  laws  and 
regulations  concerning  mines,  and  the  laws  and  regulations  of  the 
police. 

11  R.  925. 

Art.  498. — All  the  constructions,  plantations  and  works  made  on 
or  within  the  soil,  are  supposed  to  be  done  by  the  owner,  and  at  his  ex- 
pense, and  to  belong  to  him,  unless  the  contrary  be  proved,  without 
prejudice  to  the  rights  of  third  persons,  who  have  acquired  or  may 
acquire  by  prescription  the  property  of  a  subterraneous  piece  of  ground 
under  the  building  of  another,  or  of  any  part  of  the  building. 

2R.  183;  12  K.  225. 

Art.  499. — If  the  owner  of  the  soil  has  made  constructions,  planta- 
tions and  works  thereon,  with  materials  which  did  not  belong  to  him,  he 
has  a  right  to  keep  the  same,  whether  he  has  made  use  of  them  in  good 
or  bad  faith,  on  condition  of  reimbursing  their  value  to  the  owner  of 
them,  and  paying  damages,  if  he  has  thereby  caused  him  any  injury  or 
damage. 

Art.  500. — When  plantations,  constructions  and  works  have  been 
made  by  a  third  person,  and  with  such  person's  own  materials,  the  owner 
of  the  soil  has  a  riglit  to  keep  them,  or  to  compel  this  third  person  to 
take  away  or  demolisli  the  same. 

If  the  owner  requires  the  demolition  of  such  works,  they  shall  be 
demolished  at  the  expense  of  the  person  who  erected  them,  without  any 


78  OF  OWNERSHIP. 

compensation ;  such  person  may  even  be  sentenced  to  pa}-  damages,  if 
thg  case  require  it,  for  the  prejudice  which  the  owner  of  the  soil  may  have 
sustained. 

If  the  owner  keeps  tlie  works,  he  owes  to  the  owner  of  the  materials 
nothing  but  the  reimbursement  of  their  value  and  of  the  price  of  work- 
manship, without  any  regard  to  the  greater  or  less  value  which  the  soil 
may  have  acquired  thereb}'. 

Nevertheless,  if  the  plantations,  edifices  or  works  have  been  done  by 
a  third  person  evicted,  but  not  sentenced  to  make  restitution  of  the  fruits, 
because  such  person  possessed  bona  fide^  the  owner  shall  not  have  a 
right  to  demand  the  demolition  of  the  works,  plantations  or  edifices,  but 
he  shall  have  his  choice  either  to  reimburse  the  yalue  of  the  materials 
and  the  price  of  workmanship,  or  to  reimburse  a  sum  equal  to  the  en- 
hanced value  of  the  soil. 

18  L.  70;  2  R.  133, 1ST;  11  R.  225;  12  R.  44;  2  A.  403;  See  10  L.  414;  2  A. 370. 

Art.  501. — The  accretions,  which  are  formed  successively  and  im- 
perceptibly to  any  soil  situated  on  a  shore  of  a  river  or  creek,  are  called 
alluvions. 

The  alluvion  belongs  to  the  owner  of  the  soil  situated  on  the  edge 
of  the  water,  whether  it  be  a  river  or  a  creek,  and  whether  the  same  be 
navigable  or  not,  who  is  bound  to  leave  public  that  portion  of  the  bank, 
which  is  required  by  law  for  the  public  use. 

18  L.  22 ;  See  0  M.  210 ;  9  M.  050. 

Art.  502. — The  same  rule  applies  to  derelictions  formed  by  running 
water  retiring  imperceptibly  from  one  of  its  shores  ajjd  encroaching  on 
the  other ;  the  owner  of  the  laud,  adjoining  the  shore  which  is  left  dry, 
has  a  right  to  the  dereliction,  nor  can  the  owner  of  the  opposite  shore, 
claim  the  land  which  he  has  lost. 

This  right  does  not  take  place  in  case  of  derelictions  of  the  sea. 

Art.  503. — If  the  river  or  creek,  whether  navigable  or  not,  carries 
away  by  a  sudden  irruption  a  considerable  tract  of  land  from  an  adjoin- 
ing field,  which  tract  of  land  is  susceptible  of  being  identified,  by  carry- 
ing the  same  on  a  field  lower  down,  or  on  the  opposite  shore,  the  owner 
of  the  tract  of  land  thus  carried  away,  may  claim  his  property,  provided 
he  does  it  within  a  year,  or  even  after  the  year  has  elapsed,  if  the  per- 
son, to  whose  land  the  soil  thus  carried  away  has  boon  united,  has  not 
yet  taken  possession  of  the  same. 

Art.  504. — Islands  and  sand  bars,  which  are  formed  in  the  beds  of 
navigable  rivers  or  streams,  and  which  are  not  attached  to  the  bank,  be- 
long to  the  State,  if  there  be  no  adverse  title  or  prescription. 

Art.  505. — Islands  and  sand  bai-s  which  arc  formed  in  str9ams  not 
navigable,  belong  to  the  riparian  proprietors,  and  are  divided  among 
them  according  to  the  rules  prescribed  in  the  following  articles. 

Art.  506. — If  the  island  be  formed  in  the  middle  of  the  stream,  it 
belongs  to  the  riparian  proprietors,  whose  lands  are  situated  on  the  sides 
opposite  the  island.  If  they  wish  to  divide  it,  it  must  be  divided  by  a 
line  supposed  to  be  drawn  along  the  middle  of  the  river.  The  riparian 
proprietors  then  severally  take  the  portion  of  the  island  which  is  oppo- 
site their  land,  in  proportion  to  the  front  they  respectively  have  on  the 
stream  opposite  the  island. 

Art.  507. — If  on  the  contrary,  the  island  lie  on  one  of  the  sides  of 


79  OF  OWNERSHIP.  79 

the  line  tlius  supposed  to  be  drawn,  it  belongs  to  the  riparian  proprie- 
tors of  the  side  on  which  the  island  is,  and  must  be  divided  among  them 
in  proportion  to  the  front  they  respectively  have  on  the  stream  opposite 
the  island. 

AiiT.  508. — If  an  alluvion  be  .formed  in  front  of  the  property  of 
several  riparian  proprietors,  the  division  is  to  be  made  according  to  the 
extent  of  the  front  line  of  each  at  the  time  of  tlie  formation  of  the  al- 
luvion. 

Anx.  509. — If  a  river  or  creek,  whether  navigable  or  not,  by  open- 
ing itself  a  new  branch,  cuts  oil"  and  surrounds  the  field  of  any  individual 
owner  of  the  shore,  and  makes  it  an  island,  the  owner  shall  keep  the 
property  of  his  field. 

Art.  510. — If  a  river  or  creek,  whether  navigable  or  not,  opens  it- 
self a  new  bed  by  leaving  its  former  channel,  the  owners  of  the  soil 
newly  occupied  shall  take,  by  way  of  indemnification,  the  former  bed  of 
the  river,  every  one  in  proportion  to  the  quantity  of  land  he  has  lost. 

They  shall  again  take  tlieir  former  property,  if  the  river  or  creek  re- 
turns to  its  former  channel. 

Art.  511. — Pigeons,  bees  or  fish,  which  go  from  one  pigeon  house, 
hive  or  fish-pond,  into  another  pigeon  house,  hive  or  fish  pond,  belong 
to  the  owner  of  those  things,  provided  such  pigeons,  bees  or  fish  have 
not  been  attracted  thither  by  fraud  or  artifice. 


Section  II. — Of  the  Right  of  Accession  in  rclatimx  to  Movables. 

Art.  512. — The  right  of  accession,  when  it  operates  upon  two  mov- 
able things,  belonging  to  two  different  owners,  rests  altogether  upon 
principles  of  natural  equity. 

The  following  rules  shall  direct  the  determination  of  the  judge  in 
unforeseen  cases,  according  to  tlie  peculiar  circumstances  of  such,  cases. 

Art.  513. — When  two  things  belonging  to  diff"erent  owners,  and 
which  have  been  united  in  such  a  manner  as  to  form  a  whole,  are  never- 
theless of  a  nature  to  be  separated,  so  that  one  may  exist  without  the 
other,  the  whole  belongs  to  the  owner  of  the  thing  which  forms  the  prin- 
cipal part,  under  the  obligation  of  reimbursing  to  the  other  the  value  of 
the  thing  which  has  been  united  to  his  own. 

Art.  514. — The  part  which  is  considered  as  principal,  is  that  to 
which  tlie  other  has  been  united  only  for  the  use,  ornament  or  comple- 
tion of  the  other. 

Thus  the  diamon^d  is  the  principal  part  with  reference  to  the  gold  in 
which  it  is  set. 

The  coat  itself  with  reference  to  the  lace,  lining  and  embroidery. 

Art.  515. — Nevertheless  equity  requires  that  there  should  be  some 
exception  to  the  preceding  rule,  when  the  thing  united  is  much  more 
precious  than  tlie  principal  thing,  and  when  it  has  been  made  use  of,  un- 
known to  the  owner.  In  such  case,  the  owner  may  demand  that  the 
thing  be  separated  and  returned  to  him ;  even  though  some  injury  should 
result  to  the  thing  to  which  it  has  been  united. 

Art.  5 1 6. — If  of  the  two  things  united  to  form  one  whole,  the  one 
cannot  be  considered  as  the  accession  of  the  other,  the  most  considerable 


80  OF  OWNERSHIP. 

in  value  or  in  bulk,  if  tlic  value  be  nearly  cfj[ual,  shall  be  considered  as 
the  principal. 

Art.  y  1 7. — If  an  artificer,  or  any  person  whatever,  has  employed 
materials  which  did  not  belong  to  him,  in  the  making  another  article, 
whether  the  materials  may  or  may  not  be  brought  back  to  their  former 
shape,  the  person  who  was  the  owner  of  the  materials,  has  a  right  to 
claim  the  thing  which  was  made  out  of  them,  on  reimbursing  the  price 
of  the  workmanship. 

4  A.  1!>3. 

Art.  518. — The  rule  established  in  the  preceding  article,  does  not 
apply  when  the  workmanship  is  so  important  that  it  greatly  surpasses 
the  value  of  the  materials  which  have  been  employed.  Industry  then 
is  considered  as  the  principal  part,  and  gives  the  workman  a  right  to 
keep  the  thing  which  he  has  made,  on  condition  of  reimbursing  the  price 
of  the  materials  which  were  employed. 

4  A.  193. 

Art.  519. — When  a  person  has  employed  materials,  part  of  which 
did,  and  part  of  which  did  not  belong  to  him,  in  making  a  thing  of  a 
new  kind,  without  either  part  of  the  materials  being  entirely  destroyed, 
but  in  such  a  manner  that  they  cannot  be  separated  without  inconve- 
nience, the  thing  belongs  in  common  to  both  proprietors,  the  share  of  the 
one  being  in  proportion  to  the  value  of  the  materials  which  belonged  to 
him,  and  of  the  other  in  proportion  both  to  the  value  of  the  materials 
which  belonged  to  him,  and  of  the  price  of  the  workmanship. 

Art.  520. — When  a  thing  has  been  formed  by  a  mixture  of  several 
materials  belonging  to  different  proprietors,  neither  of  which  can  be 
considered  as  the  princijjal  substance,  if  the  materials  can  be  separated, 
the  proprietor,  without  whose  consent  the  mixture  was  made,  may  de- 
mand the  separation. 

If  the  materials  cannot  be  separated  without  inconvenience,  their 
owners  acquire  in  common  the  property  of  the  thing  in  proj^ortion  to 
the  quantity,  quality  and  value  of  the  materials  belonging  to  each  of 
them. 

Art.  521. — If  the  materials  belonging  to  one  of  the  proprietors  be 
far  superior  to  the  others,  both  in  quantity  and  value,  in  that  case  the 
proprietor  of  the  most  valuable  materials  may  claim  the  thing  resulting 
from  the  mixture,  on  reimbursing  to  the  other  the  value  of  his  materials. 

Art.  522. — When  the  thing  remains  in  common  to  the  proprietors 
of  the  materials  with  which  it  has  been  formed,  it  must  be  sold  at  auction 
for  the  common  benefit. 

Art.  523. — In  all  cases  where  the  proprietor,  whose  materials  have 
been  emj^loycd  unknown  to  him  in  making  a  thing  of  another  kind,  has 
a  right  to  claim  the  property  of  that  thing,  he  is  at  liberty  to  demand 
either  that  the  materials  be  returned  to  him  in  the  same  species,  quan- 
tity, weight,  measure  and  quality,  or  that  their  value  be  paid. 

Art.  524. — Damages  may  also  be  recovered  against  those  who  have 
employed  materials  belonging  to  others,  unknown  to  them,  according  to 
circumstances;  and  they  are  still  liable  to  be  prosecuted  criminally, 
should  the  case  require  it. 

4  A.  193. 


81  OF  USUFRUCT.  81 

TITLE   III. 

OF  USUFRUCT,  USE  AND  HABITATION. 
CHAPTER  I. 

OF    USUFRUCT. 

Section  I. —  General  rrinciplcs. 

Art.  525. — Usufruct  is  the  right  of  enjoying  a  thing,  the  property 
of  which  is  vested  in  anotlier,  and  to  draw  from  the  same  all  the  profit, 
utility  and  advantages  which  it  may  produce,  provided  it  be  without 
altering  the  substance  of  the  thing. 

The  obligation  of  not  altering  the  substance  of  the  thing  takes  place 
only  in  the  case  of  a  complete  usufruct. 

Art.  526. — There  are  two  kinds  of  usufruct: 

Perfect  usufruct,  which  is  of  things  which  the  usufructuary  can  enjoy 
without  changing  their  substance,  though  their  substance  may  be  dimin- 
ished or  deteriorated  naturally  by  time  or  by  the  use  to  which  they  are 
applied  ;  as  a  house,  a  piece  of  land,  slaves,  furniture  and  other  movable 
eflfeets ; 

And  imperfect  or  (7?<«si-usufruct,  which  is  of  things  which  would  be 
useless  to  the  usufructuary,  if  he  did  not  consume  or  expend  them,  or 
change  the  substance  of  them,  as  money,  grain,  liquors. 

Art.  527. — Perfect  usufruct  does  not  transfer  to  the  usufructuary 
the  property  of  the  things  subject  to  the  usufruct ;  the  usufructuary  is 
bouiul  to  use  them  as  a  prudent  administrator  would  do,  to  preserve 
them  as  much  as  possible,  in  order  to  restore  them  to  the  owner  as  soon 
as  the  usufruct  terminates. 

Art.  528. — Imperfect  usufruct,  on  the  contrary,  transfers  to  the  usu- 
fructuary the  property  of  the  things  subject  to  the  usufruct,  so  that  he 
may  consume,  sell  or  dispose  of  them,  as  he  thinks  proper,  subject  to  cer- 
tain charges  hereinafter  prescribed. 

Art.  529. — Usufruct  is  an  incorporeal  thing,  because  it  consists  in 
a  right. 

Bee  10  L.  92,  246. 

Art.  530. — Usufruct  is  divisible ;  for  if  this  right  is  vested  in  several 
persons  at  a  time,  there  is  but  one  usufruct,  which  is  divided  among 
them,  each  having  his  portion.  The  reason  is  because  the  object  of  his 
right  is  the  receiving  the  fruits  of  the  thing,  which  are  corporeal  and 
divisible.  •     . 

Art.  531. — Usufruct  may,  from  its  origin,  be  conferred  on  several 
persons  in  divided  or  undivided  portions. 

See  10  L.  240. 

Art.  532. — Usufruct  may  be  established  by  all  sorts  of  titles,  by  a 
deed  of  sale,  by  a  marriage  contract,  by  donation,  compromise,  exchange, 
last  will,  and  even  by  operation  of  law. 
6 


82  OF  USUFRUCT. 

Tims  the  usufruct  to  which  a  father  is  entitled  on  the  estate  of  his 
■'hilclreii  during  the  marriage,  is  a  legal  usufruct. 

Art.  533. — Usufruct  may  be  established  on  every  description  oi 
estates  movable  or  immovable,  corporeal  or  incorporeal. 

Art.  534. — Usufruct  may  be  established  simply,  or  to  take  place  at 
a  certain  day,  or  under  condition,  in  a  word,  under  all  such  modifica- 
tions as  the  person  who  gives  such  a  right  may  be  pleased  to  annex  to  it. 

Art.  535. — It  may  be  granted  to  all  such  as  may  be  possessed  of  an 
estate,  even  to  communities  or  corporations. 


Section  TI. — Of  the  Rights  oftJie  Usufrtcctuary 

Art.  536. — All  kinds  of  fruits,  natural,  cultivated  or  civil,  produced, 
during  the  existence  of  the  usufruct,  by  the  things  subject  lo  it,  with 
the  exception  of  the  children  of  slaves,  belong  to  the  usufructuary. 

19  L.  509 ;  8  A.  600 ;  C  A.  (>U ;  Sec  10  L.  92. 

Art.  537. — Natural  fruits  are  such  as  are  the  spontaneous  produce 
of  the  earth;  the  produce  and  increa.se  of  cattle,  and  the  children  of 
slaves  are  likewise  natural  fruits. 

The  fruits,  which  result  from  industry  bestowed  on  a  piece  of  ground, 
arc  those  wliich  are  obtained  by  cultivation. 

Civil  fruits  are  rents  of  real  property,  the  interest  of  money  and 
annuities. 

All  other  kinds  of  revenue  or  income  derived  from  property  by  the 
operation  of  the  law  or  private  agreement,  are  civil  fruits. 

CA.  634. 

Art.  538. — The  natural  fruits,  or  such  as  are  the  produce  of  industry, 
hanging  by  branches  or  by  roots,  at  the  time  wlien  the  usufruct  is  open, 
belong  to  the  usufructuary. 

Fruits  in  the  same  state,  at  the  moment  wlien  the  usufruct  is  at  an 
end,  belong  to  the  owner,  without  being  obliged  to  compensate  the  other, 
for  either  work  or  seeds. 

8  A.  4S9. 

Art.  530. — Tlie  cliildren  of  slaves  subject  to  usufruct,  who  are  boru 
during  its  duration,  belong  to  the  owner.  The  usufructuary  has  only 
the  enjoj'ment  of  their  labor  and  services. 

8  A.  600;  6  A.  634. 

Art.  540. — Rents  and  income  of  property,  interest  of  money  and 
annuities,  and  other  civil  fruits,  are  supposed  to  be  obtained  day  by  day, 
and  they  belong  to  the  usufructuary,  in  proportion  to  the  duration  of 
his  usufruct,  and  are  due  to  him,  though  they  may  not  be  collected  at 
the  expiration  of  his  usufruct. 

Art.  541. — The  usufruct  of  a  house  carries  with  it  the  enjoyment  of 
the  house,  of  the  profit  which  it  may  bring,  and  indeed  of  such  furniture 
as  is  permanently  fixed  therein,  even  should  the  title  by  which  the  usu- 
fruct is  establislicd,  make  no  mention  of  the  same. 

Art.  542. — If  the  usufruct  includes  things,  which  cannot  be  used 
without  being  expended  or  consumed,  or  without  their  substance  being 


83  OF  USUFRUCT.  83 

changed,  tlie  usufructuary  has  a  right  to  dispose  of  them  at  his  pleasure, 
but  under  the  obligatiou  of  returning  the  same  quantity,  quality  and 
value  to  the  owner,  or  their  estimated  price,  at  the  expiration  of  the 
usufruct. 

3  R.  329  ;  3  A.  494. 

Art.  543. — If  the  usufruct  comprehends  things  which,  though  not 
consumed  at  once,  are  gradually  impaired  by  wear  and  decay,  such  as 
furniture,  the  usufructuary  has,  in  like  manner,  a  riglit  to  make  use  of 
them  for  tlic  purposes  for  wliich  they  are  intended,  and  at  the  expiration 
of  the  usufruct  he  is  obliged  only  to  restore  them  in  the  state  in  which 
they  may  be,  provided  they  have  not  been  impaired  through  his  fault  or 
neglect. 

And  even  should  any  of  these  things  be  entirely  worn  out  by  use  at 
the  expiration  of  the  usufruct,  the  usufructuary  is  not  bound  to  make 
good  the  same. 

8  A.  494. 

Art.  544. — The  usufructuary  has  a  right  to  draw  all  the  profits, 
which  are  usually  produced  by  the  thing  subject  to  the  usufruct. 

Accordingly  he  may  cut  trees  on  land  of  which  he  has  tlic  usufruct, 
take  from  it  earth,  stones,  sand  and  other  materials,  but  for  his  use 
only,  and  for  the  amelioration  and  cultivation  of  the  land,  provided  he 
act  in  that  respect  as  a  prudent  administrator,  and  without  abusing  this 
right. 

3  A.  494. 

Art.  545. — The  usufructuary  has  a  right  to  the  enjoyment  and  pro- 
ceeds of  mines  and  quarries  in  the  land  subject  to  the  usufruct,  if  they 
were  actually  worked  before  the  commencement  of  the  usufruct ;  but  he 
has  no  right  to  mines  and  quarries  not  opened. 

3  A.  494. 

Art.  546. — The  usufructuary  enjoys  the  increase  brought  by  allu- 
vion to  the  land  of  which  he  has  the  usufruct,  but  has  no  right  to  islands 
formed  in  a  stream  not  navigable  opposite  the  land  ;  they  belong  to  the 
riparian  proprietors,  as  is  prescribed  in  the  title  of  tilings. 

In  like  manner  he  has  no  right,  not  even  the  right  of  enjoyment,  to 
the  treasure  which  may  be  discovered  in  the  land  of  which  he  has  tho 
usufruct,  unless  he  himself  has  discovered  it,  in  which  case  he  shall  only 
enjoy  the  right  granted  by  law  to  such  persons  as  find  a  treasure  in  a 
piece  of  land,  the  property  of  another  person. 

3  A.  494. 

Art.  547 — The  usufructuary  enjoys  the  right  of  servitudes,  ways 
or  others  due  to  the  inheritance  of  which  he  has  the  usufruct ;  and  if 
this  inheritance  is  inclosed  within  the  other  lands  of  liim  who  has  esta- 
blished such  usufruct,  a  way  must  be  gratuitously  furnished  to  the  usu- 
fructary by  the  proprietor  of  the  land  or  by  his  licirs. 

8  A.  494 

Art.  548. — The  usufructuary  may  enjoy  by  himself  or  lease  to  an- 
other, or  even  sell  or  give  away  his  right;  but  all  the  contracts  or 
agreements  which  he  makes  in  this  respect,  whatever  duration  he  may 
have  inteuded  to  give  them,  cease  of  right  at  the  expiration  of  the 
usufruct. 

8  A.  494 

Art.  540. — The  usufructuary  can  maintain  all  actions  against  the 


84  OF  USUFRUCT. 

owner  and  third  persons,  wliicli  may  be  necessary  to  insure  bim  tbe  pos- 
session, enjoyment  and  preservation  of  bis  rigbt. 

3  A.  494 

Section  III. — Of  the  Obligations  of  tlie  Usufructuary. 

Art.  550.-7-Tbe  usufructuary  takes  tbings  in  tbe  state  in  wbicb  tbey 
are ;  but  be  cannot  obtain  possession  of  tbe  tbings  subject  to  tbe  usu- 
fruct, vritbout  baving  caused  to  be  made  in  presence  of  tbe  owner,  or 
after  tbe  owner  bas  been  duly  summoned,  if  be  be  witbin  the  State,  an 
inventor}',  with  tbe  estimated  value  of  tbe  estate,  botb  movable  and 
immovable,  subject  to  tbe  u.sufruct,  by  a  notary  public  duly  authorized 
by  tbe  judge  to  tbat  eftcct,  and  in  tbe  presence  of  two  witnesses. 

If  the  owner  be  absent  from  tbe  State,  and  is  not  represented  by  any 
person  therein,  tbe  judge  shall  appoint  a  counsel  for  him  to  assist  at  the 
inventory. 

Art.  551. — Tbe  usufructuary  must  give  security  tbat  he  will  use,  as 
a  prudent  administrator  would  do,  the  movables  and  immovables  sub- 
ject to  the  usufruct,  and  that  he  will  faithfully  fulfil  all  tbe  obligations 
imposed  on  him  by  law,  and  by  the  title  under  which  bis  usufruct  is 
established. 

Art.  552. — Tbe  amount  of  this  security  shall  be  the  estimated 
value  of  the  movables  and  slaves  subject  to  the  usufruct,  according  to 
the  inventory,  and  such  further  sum  as  shall  be  fixed  by  tbe  judge  ac- 
cording to  the  nature  of  tbe  real  property  subject  to  the  usufruct,  to 
answer  for  the  damages  which  the  usufructuary,  or  those  for  whom  be 
is  responsible,  may  commit  thereon. 

This  security  may  be  dispensed  with,  in  favor  of  the  usufructuary, 
by  the  act  by  which  the  usufruct  is  established. 

12  E.  172  ;  2  A.  30. 

Art.  553. — Neither  the  father  nor  mother  having  tbe  legal  usufruct 
-of  tbe  estate  of  their  children,  nor  tbe  seller,  nor  the  donor,  under  the 
reservation  of  the  usufruct,  is  required  to  give  this  security. 

12  K.  172. 

Art.  554. — If  tbe  usufructuary  sell,  give  away,  or  lease  bis  right, 
he,  as  well  as  bis  security,  is  responsible  for  the  abuse  which  the  person 
to  whom  he  has  assigned  bis  rights,  makes  of  tbe  tbings  subject  to  the 
usufruct,  and  the  damage  he  may  commit  on  them. 

Art.  555. — The  usufructuary  may,  for  the  security  required  of  him 
by  law,  give  a  special  mortgage  on  real  property  of  sufficient  value  and 
unencumbered,  lying  within  the  State. 

12  R.  172. 

Art.  556. — If  tbe  usufructuary  does  not  give  security  or  a  special 
mortgage,  as  is  prescribed  in  the  preceding  article,  the  immovables  and 
the  slaves  subject  to  the  usufruct  shall  be  hired  out  or  leased  at  public 
auction. 

Sums  of  money,  tbe  usufruct  of  which  has  been  given,  shall  be  put 
out  at  interest  on  good  security,  with  the  consent  of  the  owner,  and  if 
he  refuse,  by  the  authority  of  the  judge. 

Movables  subject  to  the  same  usufruct,  shall  be  sold  at  public  auction, 
and  the  proceeds  of  the  sale  shall  be  put  out  at  interest  in  the  manner 
above  prescribed. 


85  OF  USUFRUCT  85 

The  interest  of  such  sums,  the  amount  of  the  real  rent  of  the  estate 
and  of  the  hire  of  slaves,  and  the  produce  of  the  sequestered  estate, 
shall,  in  such  case,  belong  to  the  usufructuary 

2  A.  71 ;  3  A.  494. 

Art.  557. — In  case  the  usufructuary  does  not  give  security,  the 
owner  has  a  right  to  insist  that  such  fui-niture  as  grows  worse  by  use, 
be  sold ;  that  the  proceeds  may  be  placed  at  interest,  as  well  as  that  of 
merchandise  ;  and  in  that  case  the  usufructuary  enjoys  the  interest  dur- 
ing the  usufruct.  Nevertlieless  the  usufructuary  may  claim,  and  the 
judge  may  order,  according  to  circumstances,  that  a  part  of  the  fui'ui- 
ture  necessary  for  his  use  be  left  to  him,  under  the  simple  obligation  of 
returning  the  same  at  the  expiration  of  the  usufruct. 

Art.  558. — Tlie  usufructuary  is  bound  to  suffer  the  services,  which 
existed  on  the  land  of  whicli  he  has  the  usufruct,  at  the  time  his  right 
commenced. 

Art.  559. — A  delay  to  give  security  does  not  deprive  the  usufruc 
tuary  of  the  profits  to  which  he  may  have  a  right ;  they  are  due  to  him 
from  the  moment  that  the  usufruct  accrued. 

Art.  5G0. — It  is  the  duty  of  the  usufructuary  to  keep  the  things  of 
which  he  has  the  usufruct,  and  to  take  the  same  care  of  them  as  a  pru 
dent  owner  does  of  what  belongs  to  him. 

lie  is  accordingly  answerable  for  such  losses  as  proceed  from  his 
fraud,  default,  or  neglect. 

Art.  561. — The  usufructuary  has  a  right  to  make  useful  and  neces- 
sary improvements  and  repairs  on  the  estate  subject  to  the  usufruct,  and 
even  to  make  such  as  are  not  necessary,  but  only  to  suit  his  own  con- 
venience, provided  he  do  not  injure  the  estate,  or  change  its  condition. 
But  as  to  buildings  existing  on  the  land  at  the  commencement  of  the 
usufruct,  he  must  preserve  them  such  as  they  have  been  transmitted  to 
him,  nor  can  he  alter  their  form,  distribution,  or  destination,  even  to  im- 
prove it,  without  the  consent  of  the  owner. 

He  has,  however,  the  right  to  make  openings  for  windows  and  doors 
in  the  house  in  which  he  lives,  and  of  which  he  has  the  usufruct. 

Art.  562. — The  usufructuary  who  has  an  usufruct  in  slaves,  cannot 
employ  them  in  other  labors  than  those  to  which  they  are  accustomed. 

Art.  563. — The  usufructuary  cannot  finish  buildings  commciiced  l)y 
the  owner,  nor  erect  new  buildings  upon  the  land  of  which  he  has  the 
usufruct,  unless  these  buildings  arc  necessary  for  working  the  land  or 
for  getting  in  the  crops ;  he,  however,  may  rebuild  edifices  and  other 
works  which  have  been  destroyed  or  thrown  down  by  time  or  accident. 

The  usufructuary  cannot  demolish  or  destroy  wliat  he  lias  once  built 
or  constructed,  nor  take  away  the  materials;  lie  must  abandon  the 
whole  to  the  owner  at  the  end  of  his  usufruct,  witliout  being  able  to 
claim  any  indemnity  therefor. 

It  is  understood  that  all  these  restrictions  on  the  rights  of  the  usu- 
fructuary, and  others  mentioned  in  this  title  of  the  code,  only  take 
place  when  there  is  no  provision  to  the  contrary  in  the  act  establishing 
the  usufruct. 

Art.  564. — The  usufructuary  is  liable  to  all  the  necessary  expenses 
for  the  preservation  and  working  of  the  estates  subject  to  the  usufiiu  t ; 
ind  if  slaves  form  a  part  of  them,  he  must  provide  for  their  supjiort 


86  OF  USUFRUCT. 

and  clothing,  for  their  medical  attendance  in  sickness,  and  the  just  and 
necessary  expenses  of  their  children. 

6  A.  634. 

Art.  5G5. — The  usufructuary  is  bound  to  make  such  repairs  only 
as  are  indispensably  necessary  for  keeping  the  estate  subject  to  the  usu- 
fruct in  good  order. 

Repairs  extraordinary  are  to  be  made  by  the  owner  himself,  unless 
such  repairs  have  become  necessary  in  consequence  of  the  usufructuary's 
neglect  to  make  tic  repairs  for  keeping  the  property  in  good  order, 
since  the  usufruct  has  been  acquired  by  him,  in  which  case  the  usufruc- 
tuary is  bound  to  make  such  extraordinary  repairs. 

Art.  5GG. — Extraordinary  repairs  are  those  of  the  principal  walls 
and  vaults,  and  the  replacing  of  beams  and  roofs  in  to(o,  and  the  recon- 
struction of  a  levee  entirely  destroyed  or  carried  away. 

All  others  are  ordinary  repairs. 

Art.  5G7. — The  usufructuary  can  be  compelled  to  make,  during  the 
time  of  his  usufruct,  the  repairs  which  he  is  bound  to  make,  the  same 
to  be  determined  b}'  experts,  and  under  the  penalty  of  being  responsible 
to  the  owner  for  all  damages  caused  by  his  default. 

Art.  5G8. — If  between  the  time  the  usufruct  commences,  and  the 
time  the  usufructuary  is  put  in  possession,  the  owner  makes  any  neces- 
sary repairs,  which  the  usufructuary  would  have  been  bound  to  make, 
the  former  has  the  right  to  claim  of  the  usufructuary  the  price  thereof, 
and  may  retain  the  possession  of  the  things  subject  to  the  usufruct,  un- 
til the  price  is  reimbursed. 

Art.  5G9. — The  usufructuary  can  release  himself  from  the  repairs 
which  he  is  bound  to  make,  and  even  from  the  other  charges  of  the 
usufruct,  by  abandoning  it,  even  when  the  owner  has  instituted  a  suit 
against  him  to  comj)el  him  to  make  them  or  bear  the  expenses  of  them, 
and  though  the  usufructuary  be  condemned  in  sucli  suit. 

But  the  abandonment  will  not  have  the  efi'ect  of  releasing  the  usu- 
fructuary from  the  charges  of  tlie  enjoyment  which  he  has  already  had 
of  the  usufruct,  nor  from  the  accountability  for  the  damages  whicli  he, 
or  persons  for  whom  he  is  responsible,  may  have  caused  to  it. 

Airr.  570. — The  usufructuary  has  no  action  against  the  owner  to 
compel  him  to  make  the  extraordinary  repairs,  which  the  latter  is  bound 
to  make.  Tlie  usufructuary,  on  the  refusal  of  the  owner  to  make  tliem, 
may  advance  the  money  necessary  to  complete  them,  and  shall  be  reim 
bu!  sed  by  the  owner  or  liis  heirs,  at  the  expiration  of  the  usufruct,  thei^ 
not  being  included  in  tlie  improvements,  which  he  is  obliged  to  abandon 
to  the  owner. 

Art.  571. — Neither  the  owner  nor  the  usufructuary  is  bound  to 
build  again  what  has  fallen  to  ruin,  owing  to  its  antiipiity,  or  has  been 
destroyed  by  chance,  when  the  ruin  is  total  and  entire ;  if  it  be  only 
partial,  it  foims  the  subject  of  ordinary  repairs. 

Nevertheless,  if  the  owner  wishes  to  rebuild  what  has  been  destroyed, 
or  to  make  the  extraordinary  repairs  for  which  he  is  bound,  the  usufruc 
tuary  is  bound  to  permit  him,  but  in  the  manner  the  least  inconvenient 
and  onerous  to  him.self,  and  he  may  prescribe  to  the  owner  a  reasonable 
delay  for  the  jterformance  of  the  work. 

Art.  572. — The  usufructuary  is  liable,  during  his  enjoyment,  to  all 


87  OF  USUFRUCT.  87 

the  annual  charges,  to  which  the  things  subject  to  the  usufruct  may  be 
liable. 

He  is  obliged  to  pay  all  taxes  and  contributions  imposed  on  the 
property' subject  to  the  usufruct,  as  avcU  as  all  ground  rents  which  may 
have  been  charged  upon  the  property,  previous  to  the  commencement  of 
the  usufruct. 

The  usufructuary  is  also  bound,  during  his  enjoyment  to  cause  to  be 
made  and  repaired  the  roads,  bridges,  ditches,  levees,  and  the  like,  for 
which  the  estate  of  which  he  has  the  usufruct,  may  be  liable. 

AuT.  573. — With  respect  to  extraordinary  or  temporary  charges, 
which  may  be  imposed  on  things  subject  to  the  usufruct  during  its 
pendency,  the  usufructuary  is  bound  to  support  them,  unless  they  are  of 
a  nature  to  augment  the  value  of  the  property  subject  to  the  usufruct. 

In  this  last  case  the  usufructuary  is  bound  to  pay  them,  and  shall  be 
reimbursed  by  the  owner  at  the  termination  of  the  usufruct,  for  the 
capital  expended  only. 

Art.  574. — The  legacy  of  an  annuity  or  alimony  left  by  a  testator, 
is  to  be  wholly  acquitted  by  the  universal  heir  or  legatee  of  the  usufruct, 
and  must  be  acquitted  by  the  heir  or  legatee  on  an  universal  title,  in 
proportion  to  his  enjoyment,  without  any  claim  whatever  to  reimburse- 
ment on  their  part. 

Art.  575. — The  usufructuary  on  a  particular  title  is  not  bound  to 
pay  the  debts  for  which  the  estate  is  mortgaged  ;  if  he  be  compelled  to  pay 
them,  he  has  his  action  against  the  owner,  subject  to  the  provisions  con- 
tained in  the  title  of  donations  inter  vivos,  and  mortis  catisa. 

3  A.  175. 

Art.  576. — The  univei'sal  usufructuary,  or  usufructuary  under  an 
universal  title,  whose  usufruct  has  been  constituted  by  an  act  inter  vivos, 
in  good  fiiith  and  at  a  time  not  suspicious,  is  not  bound  for  the  debts  of 
the  owner,  nor  can  he  be  sued  for  them,  unless  some  part  of  the  pro- 
perty subject  to  the  usufruct  be  mortgaged  for  the  payment  of  tlicse 
debts,  because  with  reference  to  the  owner  the  usufructuary  acquires 
under  a  particular  title. 

Art.  577. — The  universal  usufructuary,  or  usufructuary  under  an 
universal  title,  whose  usufruct  has  been  constituted  by  an  act  of  last  will, 
is  not  directly  bound  for  the  debts  of  the  testator,  that  is  to  say,  the 
creditors  of  the  succession  have  no  action  against  him  to  force  him  to 
discharge  the  debts  out  of  his  own  estate,  saving  their  rights  to  cause  to 
be  seized  the  effects  of  tlie  succession,  and  to  proceed  against  the  heir 
of  the  testator  to  obtain  payment. 

Art.  578. — The  heir  of  the  testator  who  has  bequeathed  away  the 
usufruct  of  his  propcrtj-,  whetlier  universally  or  under  an  universal  title, 
can,  when  the  creditors  of  the  succession  sue  him,  sell  a  part  of  the 
property  subject  t#  the  usufruct,  sufficient  to  yield  the  sum  necessary 
for  the  discharge  of  the  debts,  in  proportion  to  the  sum  for  which  the 
property  subject  to  the  usufruct  is  bound,  if  the  usufructuary  will  not 
make  an  advance  of  this  sum,  as  is  mentioned  in  the  following  articles. 

8  A.  175,  4S9;  4  A.  395,  3S9. 

Art.  570. — If  tlie  legacy  of  the  usufruct  includes  all  the  property 
of  the  testator,  and  the  universal  usufructuary  will  advance  the  sum 
;jecessary  to  discharge  the  debts  of  the  succession,  the  capital  shall  be 


8(5  OF  USUFRUCT. 

returned  to  liim  at  the  expiration  of  the  usufruct  without  interest ;  but 
if  he  will  not  make  this  advance,  the  lieir  has  the  choice  of  niakinir  the 
necessar>'  advance  himself  for  which  the  usufructuary  shall  allow  him 
interest  for  the  period  of  the  usufruct,  or  to  sell  a  part  of  the  property 
subject  to  the  usufruct,  as  stated  in  the  preceding  article. 

8  A.  17.5,4*9;  4  A.  3S0. 

Ai;t.  580. — If,  on  the  contrary,  the  legacy  includes  only  a  certain 
proportion  of  the  property  of  the  testator,  or  the  whole  of  a  certain  kind 
of  property,  the  usufructuar}-  under  an  universal  title,  is  bound  only  to 
contribute  with  the  heir  to  the  payment  of  the  debts  of  the  succession. 

Art.  581. — To  establish  this  contribution,  the  value  of  the  property 
subject  to  the  usufruct,  and  that  of  the  property  remaining  to  the  heir, 
is  estimated,  and  the  sum  which  they  are  each  bound  to  contribute  to 
the  payment  of  the  debts,  is  fixed  in  proportion  to  this  valuation. 

After  which,  if  the  usufructuary  will  make  an  advance  of  the  sum 
which  he  is  bound  to  contribute,  the  capital  mtist  be  returned  to  him 
without  interest  at  the  termination  of  the  usufruct,  but  if  he  will  not, 
the  heir  has  the  choice,  either  to  pay  this  sum,  in  which  case  the  usu- 
fructuary must  pay  him  interest  during  the  period  of  the  usufruct,  or  to 
sell  a  ])art  of  the  propert}'^  subject  to  the  usufruct,  sufficient  to  meet  the 
sum  which  the  usufructuary  is  bound  to  contribute. 

Art.  582. — Usufructuaries,  with  the  exception  of  fathers  and 
mothers,  as  is  hereafter  provided,  are  bound  to  pay  no  costs,  but  such 
as  result  from  law-suits  concerning  the  enjoyment  of  the  property  sub- 
ject to  their  usufruct,  and  to  judgments  which  may  have  been  given  in 
such  suits. 

Nevertheless,  in  suits  instituted  for  the  recovery  of  the  thing  subject 
to  the  usufruct  against  the  owner,  the  expenses  must  be  divided  between 
the  usufructuary  and  him. 

Art.  583. — Fathers  and  mothers  who  enjoy  the  legal  usufruct  of 
the  property  of  their  children,  are  bound  to  .support  the  expenses  of  all 
suits,  concerning  that  property,  in^the  same  manner  as  if  they  were  the 
owners  of  it. 

Art.  584. — The  usufi-uctuary  wlio  loses,  by  non-usage  on  his  part, 
a  service  belonging  to  the  property-  subject  to  his  usufruct,  is  responsi- 
ble for  it  to  the  owner.  He  is  also  responsible  to  the  owner,  if  he  per- 
mits a  service  to  be  acquired  on  the  projierty  by  prescription. 

Art.  585. — If,  during  the  period  of  the  usufruct,  a  third  person 
makes  encroachments  on  the  estate,  or  violates,  in  any  other  way,  the 
rights  of  the  owner,  it  is  the  duty  of  the  usufructuary  to  give  informa- 
tion of  the  same  to  the  owner,  and  if  ho  fails  to  do  it,  he  shall  be  an- 
swerable for  all  damages  which  may  result  to  the  owner,  as  he  would  be 
for  injuries  committed  by  hiujsclf 

Art.  5SG. — If  the  xisufruct  consists  of  one  head  of^cattle,  which  dies 
without  any  neglect  on  the  part  of  the  usufructuary,  he  is  not  bound  to 
return  another,  or  to  pay  the  estimated  value  of  the  same. 

10 11.  40. 

Art.  587. — If  a  whole  herd  of  cattle  subject  to  the  usufruct,  dies 
owing  to  some  accident  or  disease,  without  any  neglect  on  the  part  of 
the  ufAifructuary,  he  is  bdund  only  to  return  the  owner  the  hides  of  such 
•jattle,  or  the  value  of  such  hides. 


89  OF  USUFRUCT.  80 

If  the  wliolo  herd  docs  not  die,  the  usufructuary  is  bound  to  make 
good  the  number  of  dead  out  of  the  ncAV-born  cattle,  as  far  as  they  go. 

10  E.  46. 

Art.  588. — The  usufructuary  is  not  bound  to  return  other  slaves  in 
the  stead  of  such  as  died  during  his  enjoyment,  nor  to  pa}'  their  estimated 
value,  unless  they  died  through  his  fraud  or  neglect. 

Art.  589. — At  the  expiration  of  the  usufruct,  the  usufructuary  has 
no  right  to  claim  any  compensation  for  the  improvements  which  he 
contends  he  has  made,  although  the  value  of  the  thing  may  have  been 
increased  by  such  improvements. 

The  usufructuary  is  bound  at  the  expiration  of  his  usufruct,  to  aban- 
don, without  compensation,  not  only  the  buildings  and  other  works 
which  he  may  have  constructed  upon  the  property,  wlicther  they  have 
or  have  not  foundatioils  in  the  soil,  but  all  other  movable  things  which 
he  may  have  attached  to  it  permanently. 

Nevertheless,  he  or  his  heirs  may  take  away  the  looking-glasses,  pic- 
tures, statues  and  other  ornaments,  which  he  may  have  placed  there, 
and  which  are  fastened  by  plaster,  lime  or  cement,  but  under  the  obli- 
gation of  re-establishing  the  premises  in  their  former  situation. 

Art.  590. — The  usufructuary  may  set  off  against  the  damages  which 
have  been  caused  to  the  property  of  which  he  has  the  usufruct,  the  im- 
provements which  he  has  been  obliged  to  abandon  to  the  owner,  provided 
the  latter  be  of  the  description  of  those  which  by  law  he  was  authorized 
to  make. 

Art.  591. — The  undertaker  or  workman  who  has  made,  at  the  in- 
stance of  the  usufructuary,  any  building,  work  or  improvement  on  the 
property,  and  who  is  unpaid  at  the  expiration  of  the  usuffuct,  preserves 
his  privilege  on  the  same,  and  can  enforce  it  against  the  owner  under  the 
modifications  prescribed  in  the  following  articles. 

Art.  592. — If  the  works  consisted  in  repairs,  which  the  usufructuary 
was  bound  to  make,  or  in  buildings  which  he  was  authorized  by  law  to 
make,  the  owner  shall  be  obliged  to  pay  what  remains  due  to  the  work- 
man, reserving  always  his  recourse  against  the  usufructuary  or  his  heirs. 

If,  on  the  contrary,  the  works  consisted  of  extraordinary  repairs, 
which  the  owner  was  bound  to  make,  he  is  obliged  to  pay  the  price  to 
the  workman,  without  any  recourse  against  the  iisufructuary  or  his  heirs. 

Art.  593. — If  the  works  performed  were  not  of  the  description  of 
those  which  the  usufructuary  Vas  authorized  by  law  to  mako,  tlie  owner 
may  retain  them  on  paying  the  price  of  them  to  the  workman,  or  he  may 
oblige  the  usufructuary,  or  his  heirs,  to  remove  them  at  their  expense, 
and  in  that  case  the  workman  will  have  recourse  only  against  the  usu 
fructuary  and  his  heirs,  for  the  payment  of  the  price  of  his  work. 


Section  IV. — Of  fhc  Obligations  of  the  Owtier. 

Art.  594. — The  owner  of  the  thing  subject  to  the  usufruct  is  bound 
to  deliver  it  to  the  usufructuary,  or  to  suffer  him  to  take  possession  of 
Jie  same. 

Art.  595. — He  must  neither  interrupt,  nor  in  any  way  impede  tbo 


90  OF  USUFRUCT. 

usufructuary  iu  the  cnjoj'mcnt  of  the  usufruct,  or  in  any  manner  impair 
his  rights. 

Art.  596. — He  is  not  at  liberty,  either  before  or  after  the  delivery 
of  the  thing,  to  make  any  alteration  on  the  premises  or  things  subject  to 
the  usufruct,  whereby  the  condition  of  the  usufructuary  may  become 
worse,  although  the  estate  itself  may  be  bettered  by  them. 

Hence  he  cannot  raise  an  existing  building,  nor  cause  one  to  be 
erected  in  a  place  where  there  was  none,  unless  it  be  with  the  consent  of 
the  usufructuary.  He  may  still  less  cut  down  any  trees  of  a  wood,  de- 
molish a  building,  or  make  any  other  alteration  to  the  injury  of  the  usu- 
fructuary ;  and  if  he  does,  he  shall  be  bound  to  make  good  the  losses  and 
damages  which  may  result. 

Art.  597. — The  owner  of  an  estate  subject  to  the  usufruct,  cannot 
create  any  new  servitude  thereon,  unless  it  be  done  in  such  a  manner  as 
to  be  no  injury  to  the  usufructuary. 

Art.  598. — If  the  usufructuary  cannot  have  the  enjoyment,  because 
of  some  obstacle  which  the  proprietor  is  bound  to  remove,  the  latter  shall 
make  good  the  losses  and  damages,  which  are  sustained  by  the  non-en- 
jo3'ment,  as  if  there  be  an  eviction  or  any  other  disturbance  against  which 
the  proprietor  is  bound  to  warrant,  or  if  he  refuses  the  usufructuary  any 
necessary  servitude,  which  he  is  bound  to  let  him  enjoy. 

Art.  599. — The  proprietor  is  not  bound  to  rebuild  or  repair  that 
which  happens  to  be  demolished  or  damaged  at  the  time  that  the  usufruct 
is  acquired,  unless  it  happened  by  his  fraud,  or  unless  he  was  obliged  by 
the  title  of  the  usufruct  to  put  the  property  in  good  order. 

Art.  600. — The  owner  may  mortgage,  sell  or  alienate  the  thing  sub- 
ject to  the  usufruct,  without  the  consent  of  the  usufructuary,  but  he  is 
prohibited  from  doing  it  in  such  circumstances,  and  under  such  condi- 
tions as  may  be  injurious  to  the  enjoyment  of  the  usufructuary. 

Section  V. — How  Usvfruct  exjnres. 

Art.  601. — The  right  of  the  usufruct  expires  at  the  death  of  the 
usufructuary. 

Art.  602. — The  legacy  made  to  any  one  of  the  revenues  of  a  pro- 
perty, is  a  kind  of  usufruct,  which  also  ceases  and  becomes  extinguished 
by  the  death  of  the  legatee,  if  the  contrary  has  not  been  exj^ressly  stipu- 
lated. 

It  is  the  same  with  all  annual  legacies  as  pensions  of  alimony  and 
the  like. 

Art.  603. — If  the  title  of  the  usufruct  has  limited  the  right  to  it  to 
commence  or  determine  at  a  certain  time,  or  in  the  event  of  a  certain 
condition,  the  right  does  not  commence  or  determine,  till  the  condition 
happens  or  the  time  elapses. 

Art.  604. — If  the  usufructuary  is  charged  to  restore  the  usufruct  to 
another  person,  his  right  to  the  usufruct  expires,  whenever  the  time  for 
making  such  restitution  arrives. 

Art.  605. — The  usufruct  granted  until  a  third  person  shall  arrive 
\t  a  certain  age,  lasts  until  that  time,  although  the  third  person  should 
iie  before  the  age  fixed  on. 

Art.  606. — The  usufiuct  left  to  a  surviving  wife,  until  her  dowry 


91  OF  USUFRUCT.  9l 

be  refunded,  continues  until  the  whole  of  it,  capital  and  interest,  is  paid, 
unless  the  default  of  payment  proceeds  from  her  act. 

If  there  be  several  heirs  of  the  husband  and  one  of  them  has  paid 
what  he  owes  of  the  dowry,  the  usufruct  terminates  for  his  portion. 

AiiT.  607. — The  usufruct  which  is  granted  to  corpoi-ations,  congre- 
gations or  other  companies,  which  are  deemed  perpetual,  lasts  only  thirty 
years. 

If  these  corporations,  congregations  or  other  companies  are  sup- 
pressed, abolished  or  terminate  in  any  other  manner,  the  usufruct  ceases 
and  becomes  united  with  the  ownership. 

Art.  G08. — The  usufruct  expires  before  the  death  of  the  usufruc- 
tuary, by  the  loss,  extinction  or  destruction  of  the  thing  subject  to  the 
usufruct. 

Thus  the  usufruct,  which  is  established  upon  a  building,  expires,  if 
the  building  is  destroyed  by  fire  or  any  other  accident,  or  if  it  falls  down 
through  the  decay  of  years. 

In  this  case  the  usufructuary  would  not  even  have  the  usufruct  of 
the  materials  of  the  building,  nor  of  the  place  in  which  it  stood  ;  for  the 
usufruct  is  to  be  restrained  to  what  is  specified  in  the  title.  But  if  the 
usufruct  be  assigned  upon  an  estate  of  which  the  building  is  a  part,  the 
usufructuary  shall  enjoy  both  the  soil  and  the  materials. 

AuT.  609. — If  it  happens  that  a  part  of  the  house  be  destroyed,  and 
that  another  part  of  it  remains,  the  usufruct  will  be  j^reserved  of  that 
part  of  the  house  which  remains,  and  of  the  place  on  which  the  part  of 
the  house  which  is  destroyed  stood,  for  such  place  makes  a  part  of  the 
house,  and  is  an  accessory  to  the  part  of  it  that  remains. 

Art.  610. — The  thing  subject  to  the  usufruct  is  considered  as  lost, 
when  it  undergoes  from  accident  such  a  change  in  its  form,  that  it  can 
no  longer  be  applied  to  the  use  for  which  it  was  originally  destined. 
Therefore  the  usufruct  of  a  field  or  lot  is  extinguished,  if  one  or  the 
other  be  so  covered  with  water  by  an  inundation,  that  it  becomes 
changed  into  a  pond  or  swamp.  But  the  usufruct  revives  if  the  humda- 
tion  ceases,  and  the  waters,  on  retiring,  leave  the  land  uncovered  and  in 
its  former  condition. 

Art.  611. — The  changes  made  by  the  testator  in  the  thing,  the 
usufruct  of  which  he  has  bctiucathed,  after  having  so  disposed  of  it,  do 
not  produce  the  extinction  of  the  usufruct,  unless  the  legacy  by  which 
the  usufruct  is  established  is  considered  as  revoked,  according  to  the 
rules  prescribed  on  this  subject,  in  the  title  of  donations  inter  vivos  and 
mortis  causa. 

Art.  612. — Although  the  thing  subject  to  the  usufruct  may  be  sold 
by  tlie  proprietor,  or  by  his  creditors,  upon  an  order  of  seizure,  tliis  sale 
makes  no  alteration  in  the  right  of  the  usufructuary,  who  continues  to 
enjoy  the  same,  unless  he  has  formally  renounced  it ;  but  if  the  thing 
subject  to  the  usufruct  was  mortgaged  by  the  person  who  granted  such 
usufruct,  before  he  granted  it,  the  usufructuary  may  be  evicted  of  his 
right  in  consetjucnce  of  the  claim  of  tlie  mortgage  creditors;  but  in  that 
case,  the  usufructuary  has  his  action  against  the  proprietor  of  tlie  thing 
upon  which  the  usufruct  was  assigned,  as  is  provided  in  the  third  section 
of  the  present  title.  In  the  same  manner  the  usufructuary  may  be  de- 
prived of  Lis  usufruct  by  the  seizure  and  sale  which  may  be  made  of  the 
eamc  by  his  own  creditors 


92  OF  USUFRUCT. 

Art.  G13. — The  usufruct  may  be  forfeited  likewise  by  the  noii  usage 
of  this  right  by  the  usufructuary,  or  any  person  in  his  name,  during  ten 
years,  if  the  parties  be  present,  and  twenty  years  if  they  be  absent, 
whether  the  usufruct  be  constituted  on  an  entire  estate,  or  only  a 
divided  or  individual  part  of  an  estate. 

Art.  614. — The  usufruct  is  extinguished  by  the  usufruct  and  the 
ownership  being  vested  in  one  and  the  same  person,  that  is,  when  the 
owner  acquires  the  usufruct,  or  when  the  usufructuary  acquires  the 
naked  owiiership.  The  reason  is  that  no  services  can  be  due  by  a  thing 
to  the  owner  of  such  thing. 

Art.  615. — If  the  usufructuary  acquires  the  naked  osvnership,  the 
usufruct  is  thereby  so-  extinguished,  that  if  afterwards  he  loses  the 
ownership,  the  entire  ownership  is  lost  to  him,  and  the  usufruct  does 
not  revive,  unless  the  title  by  which  he  acquired  the  ownership  be  an- 
nulled for  some  previously  existing  defect,  or  some  vice  inherent  in  the 
act ;  for  in  that  case  the  usufructuary  never  having  been  the  owner,  no 
consolidation  has  taken  place,  and  the  usufruct  continues. 

Art.  616. — The  usufruct  may  cease  by  the  abuse  which  the  usu- 
fructuary makes  in  his  enjoyment,  either  in  committing  waste  on  the 
estate,  or  in  suffering  it  to  go  to  decay,  for  want  of  repairs,  or  in  abusing 
in  any  other  manner  the  things  subject  to  the  usufruct. 

In  such  cases  the  judge  may,  according  to  circumstances,  decree  the 
absolute  extinction  of  the  usufruct,  or  order  that  the  owner  shall  re- 
enter into  the  enjoyment  of  the  property  subject  to  the  usufruct,  on 
condition  that  he  shall  pay  annually  to  the  usufructuary  or  his 
representatives  until  the  usufruct  expires,  a  sum  which  shall  be  fixed 
on  by  the  judge,  in  proportion  to  the  value  of  the  property  subject  to 
the  usufruct. 

Art.  617. — The  usufructuary  may  prevent  the  re-entry  of  the  owner 
in  case  of  damage  committed  by  the  former  on  the  property  subject  to 
the  usufruct,  by  offering  to  make  the  necessary  repairs,  and  giving  a 
sufiicient  security  that  he  will  make  them,  which  he  is  bound  to  make, 
within  a  certain  fixed  time. 

Art.  618. — The  creditors  of  the  usufructuary  may  intervene  in  all 
suits  which  arise  between  him  and  the  owner  on  this  subject,  for  the 
preservation  of  their  rights,  and  may  prevent  the  expulsion  of  the  usu- 
fructuary by  offering  to  repair  the  damages  committed,  and  to  give 
security  for  the  future. 

Art.  619. — The  creditors  of  the  usufructuary  can  cause  to  be  an- 
nulled any  renunciation  which  he  may  have  made  of  his  right  to  their 
prejudice,  whether  it  be  accompanied  with  fraud  or  not,  and  they  are 
permitted  to  exercise  all  the  rights  of  their  debtor  in  this  respect. 

In  all  cases  the  renunciation  of  the  usufructuary  cannot  be  inferred 
from  circumstances ;  it  must  be  express. 

Art.  620. — When  the  usufruct  has  expired,  the  thing  which  was 
subject  to  it,  returns  to  and  becomes  again  incorporated  with  the  owner- 
ship, and  from  that  time  the  person  who  had  only  the  bare  ownership, 
begins  to  enter  into  a  full  and  entire  ownership  of  the  thing. 

Nevertheless,  the  usufructuary  or  his  heirs  have  the  right  to  retain 
possession  of  the  thing  subject  to  the  usufruct,  until  they  have  been 


OF  USE  AND  HABITATION.  9i 

fully  repaid  for  all  expenses  and  advances  for  wliich  they  have,  by  law. 
recourse  against  the  owner  or  his  heirs. 

CHAPTER  II. 

OF  USE  AND  HABITATION. 

.  ^T  621  __Usc  is  the  right  given  to  any  one  to  make  a  gratuitous 
,,so  of  a  thin-  belonging  to  another,  or  to  exact  such  a  portion  of  the 
fruits  it  produces,  as  is  necessary  for  his  personal  wants  and  those  of 

^''  A^^^622.-The  right  of  habitation  is  the  right  of  dwelling  gratui- 
touslv'in  a  house,  the  property  of  another  person.         ^  , ,.  ,    ,        ,   ^^ 
Art!  G23.-The  right  and  use  of  habitation  is  established  and  cx- 
tintruished  in  the  same  manner  as  the  usufruct.  •         p  xi 

Tt  G-24  -The  person  having  the  use,  if  he  be  in  possession  of  the 
thin.  ;ffocted  with  his  right,  as  is  said  hereafter,  and  he  who  enjoys  the 
rilt  of  h  bitation,  are  bound  to  furnish  security,  and  to  make  an  inven- 
tory n  the  same  manner  as  the  usufructuary  and  under  the  rules 
excepti^^«  and  restrictions  established  on  this  subject  m  the  chapter  ./ 

'"'•£?■  625 -But  the  person  having  the  use  is  not_  bound  to  give 
secuTl^y  nor  to  make  an  inventory,  if  the  thingremains  ^^fo  possession 
of  tie  owner  and  his  right  is  confined  to  exacting  ou  of  the  trnits  pro- 
du  ed  by  the  thing  what  is  necessary  for  his  personal  wants  ai  d  tliose 
ofhisSnily;  for  in  relation  to  these  fruits,  he  is  not  bound  tu  make 

^°^X!ff  Goe^lThe  rights  to  use  and  habitation  are  regulated  by  the 
title  whichlias  established  them,  and  receive  accordingly  a  more  or  lcs.s 
ex  enlve  sense,  it  being  well  understood  that  these  conventions  do  not 
exceed  the  limits  of  the  laws  on  use  and  habitation;  if  they  do,  they 

"■"Thus'a  i-i^'ht 'to  receive  the  fruits  of  a  property  and  to  sell  and  dis- 
pose of  themlveely,  would  be  a  right  of  usufruct,  and  all  the  laws  con- 
cernin"-  usufruct  would  be  applicable  to  it.  .     .     f  +i  „ 

Ai"t  627  -If  the  title  be  silent  with  respect  to  the  extent  of  the 
right,  the  rights  to  use  and  habitation  shall  be  determined  by  the  fol- 

^°'' Air6?8  -That  which  distinguishes  the  usufruct  of  a  property  from 
the  use  of  it,'is  this,  that  the  enjoyment  of  the  usufructuary  is  not  con- 
fined to  wha^  is  necessary  for  his  consumption,  but  he  takes  all  the  fruits, 
and  can  dispose  of  them  as  he  pleases. 

The  person,  on  the  other  hand,  who  has  only  the  use  of  an  estate 
has  a  right  onl^  to  such  fruits  as  may  be  necessary  for  his  daily  wants 
and  those  of  his  family.  .  ,  ,  ^ 

iVut  he  may  claim  so  much  of  those  fruits  as  may  be  necessary  to 
supply  the  wants  of  the  woman  he  has  married,  and  of  his  children  born 
since  the  use  has  been  granted  to  him. 

A,  r  6'^9  -He  who  lias  the  use  of  the  fruits  of  an  estate  cannot  go 
upon  tiie  estate  to  exercise  his  rights,  still  less  is  he  permitted  to  live 


94  OF  USE  AND  HABITATION. 

tliere,  unless  he  have  thereon  a  right  of  habitation ;  he  has  only  au  aetioE 
against  the  owner  to  obtain  from  him  such  of  the  fruits  as  may  be  neces- 
sary for  his  daily  wants  and  those  of  his  family. 

He  who  has  the  use  may  therefore  cause  to  be  fixed  by  the  judge 
from  time  to  time,  the  proportion  of  fruits  which  he  has  a  right  to  exact 
from  the  owner  of  the  property ;  and  this  must  be  determined  according 
to  the  condition  of  him  who  has  the  use,  and  the  fortune  of  him  who 
conferred  the  right,  if  the  title  be  not  explicit  on  this  subject,  and  ac- 
cording to  the  increase  or  diminution  of  the  family  of  him  who  has  the 
use. 

Art.  630. — The  right  of  use  of  a  house  and  that  of  habitation  being 
alike,  are  subject  to  the  same  rules. 

Art.  631. — But  he  who  has  the  use  of  one  or  more  slaves,  has  the 
right  to  enjoy  their  service  for  his  wants  and  those  of  his  family. 

Art.  632. — He  who  has  the  use  of  a  herd  of  cattle  cannot  make  any 
other  use  of  the  same  than  by  taking  the  milk  necessary  for  his  daily  use 
and  that  of  his  family. 

Art.  633. — He  who  has  the  use  of  such  things  as  cannot  be  used 
without  being  expended  or  consumed,  as  money,  provisions  or  liquors, 
has  a  right  to  use  such  things  as  the  usufructuary  may,  and  on  the  same 
terms. 

Movables  which,  although  not  consumed  entirely,  are  gradually  worn 
out  by  use,  such  as  linen,  furniture,  ships  or  boats,  are  governed  by  the 
same  rule. 

Art.  634. — There  is  this  diiference  between  the  person  who  has  the 
use  and  the  usufructuary,  that  the  person,  who  has  the  use,  can  neither 
transfer,  let,  nor  give  his  right  to  another. 

Art.  635. — The  right  of  the  person,  who  has  the  use,  is  not  only 
for  one  or  more  years,  but  it  lasts  during  the  life  of  such  person,  if  the 
title  upon  which  this  right  is  grounded  does  not  otherwise  provide. 

Art.  636. — He  who  has  a  right  to  habitation  in  a  house,  may  reside 
there  with  his  family,  though  he  may  not  have  been  married  at  the  time 
this  right  was  granted  to  him. 

Art.  637. — The  right  of  habitation  is  confined  to  what  is  necessary 
for  the  habitation  of  the  person  and  of  the  family  of  the  person  to  whom 
the  right  of  use  or  habitation  is  granted. 

But  nothing  prevents  him,  who  enjoys  the  right  of  habitation,  from 
receiving  in  the  house,  or  the  part  of  it  which  has  been  assigned  to 
him,  friends,  guests  or  even  boarders,  provided  he  inhabits  it  himself. 

Art.  638. — The  word  family^  made  use  of  in  this  chapter,  is  to  be 
understood  of  the  wife,  children  and  servants  of  the  person  to  whom  the 
right  of  use  or  habitation  is  granted. 

Art.  639. — The  right  of  habitation  can  neither  be  transferred,  let 
nor  given  to  any  one  else ;  it  is,  as  well  as  the  use,  exclusively  a  personal 
right. 

Art.  640. — He  who  has  the  use,  and  he  to  whom  the  right  of  habi- 
tation has  been  granted,  are  bound  to  use  those  things  of  which  they 
have  the  possession  and  enjoyment,  as  prudent  administrators  would  do, 
and  to  restore  them  to  the  owners  at  the  expiration  of  their  terms,  in 
the  condition  they  received  them,  and  not  injured  by  their  neglect  or 
fraud. 


35  OF  SERVITUDES.  95 

Art.  641. — If  the  person  who  has  the  use,  consumes  all  the  fruits 
of  the  estate  for  his  wants,  or  if  he  occupies  the  whole  house,  he  is  bound 
to  defray  the  expenses  of  cultivation  and  plantation  work  :  he  is  liable 
to  the  ordinary  repairs,  to  the  payment  of  taxes,  and  to  the  other  annual 
charges  in  the  same  manner  as  the  usufructuary  is. 

But  if  he  receives  only  a  part  of  the  fruits  of  the  estate,  or  if  he  oc- 
cupies only  a  part  of  the  house,  he  contributes  his  share  of  said  expenses, 
in  proportion  to  what  he  enjoys. 


TITLE  IV 

OF  PREDIAL  SERVITUDES  OR  SERVITUDES  OF  LAND. 
CHAPTER  I. 

GENERAL    PRINCirLES. 

Art.  642. — All  servitudes  which  affect  lands  may  be  divided  into 
two  kinds,  personal  and  real. 

Personal  servitudes  are  those  attached  to  the  person  for  whose  ben- 
efit they  are  established,  and  terminate  with  his  life.  This  kind  of  ser- 
vitude is  of  three  sorts,  usufruct,  use  and  habitation ; 

Real  servitudes,  which  are  also  called  2»'cdial  or  landed  servitudes, 
are  those  which  the  owner  of  an  estate  enjoys  on  a  neighboring  estate 
for  the  benefit  of  his  own  estate. 

They  are  called  2^>'cdial  or  landed  servitudes,  because  being  estab- 
lished for  the  benefit  of  an  estate,  they  are  rather  due  to  the  estate  than 
to  the  owner  personally. 

This  kind  of  servitude  forms  the  subject  of  the  present  title. 

Art.  643. — A  real  or  predial  servitude  is  a  charge  laid  on  an  estate 
for  the  use  and  utility  of  another  estate  belonging  to  another  proprietor. 

Art.  644. — From  the  definition  contained  in  the  preceding  article 
it  follows,  that  to  establish  a  predial  or  real  servitude,  there  must  first 
be  two  different  estates,  one  of  which  owes  the  servitude  to*  another. 

If  then  a  stipulation  be  made  of  a  servitude  in  favor  of  a  person, 
and  not  in  favor  of  an  estate,  the  obligation  will  not  be  null  on  that 
account,  but  it  will  not  create  a  real  servitude. 

Art.  645. — It  is  necessary,  in  the  second  place,  that  these  two 
estates  belong  to  two  different  persons,  for  if  they  are  both  the  property 
of  one  person,  the  application  which  the  owner  makes  of  one  to  the  ad- 
vantage of  the  other,  is  not  called  a  'servitude,  but  a  disposition  of  the 
owner,  which  will  be  explained  hereafter. 

Art.  646. — It  is  necessary,  in  the  third  place,  that  the  servitude 
have  for  its  object  the  use  or  benefit  of  the  estate,  in  favor  of  which  it 
is  established. 

But  it  is  not  necessary  that  this  benefit  exist  at  the  time  of  the  con- 


9.6  OF  SERVITUDES. 

tract ;  a  mere  possible  convenience  or  remote  advantage  is  sufficient  to 
support  a  servitude. 

In  order  to  render  a  servitude  null,  it  is  not  enougli  that  it  should 
appear  to  be  useless,  it  must  be  shown  that  at  no  time,  and  under  no 
circumstances,  it  can  possibly  become  useful  to  the  person  in  whose  fa- 
vor it  is  enacted. 

Art.  647. — Predial  servitudes,  being  due  from  one  estate  to  another 
it  commonly  happens  that  these  estates  are  in  the  same  neighborhood. 

Nevertheless,  this  neighborhood  is  not  a  condition  essential  to  the 
existence  of  the  servitude. 

Nor  is  it  necessary  that  the  estate,  which  owes  the  servitude,  and 
that  to  which  it  is  due,  be  contiguous ;  it  suffices  that  they  be  suffi- 
ciently near,  for  one  to  derive  benefit  from  the  service  in  the  other. 

Art.  648. — A  servitude  is  an  incorporeal  right  which  cannot  exist 
.jvithout  the  estate  to  which  it  belongs,  and  of  which  it  is  an  accessory. 

Art.  649. — Servitudes  being  essentially  due  from  one  estate  to  an- 
other for  the  advantage  of  the  latter,  they  remain  the  same  as  long  as 
no  change  takes  place  in  regard  to  the  two  estates,  whatever  change 
may  take  place  in  the  owners. 

Art.  650. — Servitude  is  a  right  so  inherent  in  the  estate  to  which 
it  is  due,  that  the  faculty  of  using  it,  considered  alone  and  independent 
of  the  estate,  cannot  be  given,  sold,  let,  or  mortgaged  without  the  estate 
to  which  it  appertains,  because  it  is  a  servitude  which  does  not  pass  to 
the  person  but  by  means  of  the  estate. 

Art.  651. — One  of  the  characteristics  of  a  servitude  is,  that  it  does 
not  oblige  the  owner  of  the  estate  subject  to  it  to  do  any  thing,  but  to 
abstain  from  doing  a  particular  thing,  or  to  permit  a  certain  thing  to  be 
done  on  his  estate. 

Art.  652. — The  rights  of  servitudes,  considered  in  themselves,  are 
not  susceptible  of  division,  neither  real  nor  imaginary.  It  is  impossible 
that  an  estate  should  have  upon  another  estate  part  of  a  right  of  way, 
or  of  view,  or  any  other  right  of  servitude,  and  also  that  an  estate  be 
charged  with  a  part  of  servitude. 

The  use  of  a  right  of  servitude  may  be  limited  to  certain  days  or 
hours ;  but  thus  limited  it  is  an  entire  right,  and  not  part  of  a  riglit. 

From  tbence  it  follows  that  a  servitude  existing  in  favor  of  a  piece 
of  land  is  due  to  the  whole  of  it,  and  to  all  the  parts  of  it,  so  that  if 
the  land  be  sold  in  parts,  every  purchaser  has  the  right  of  using  the 
servitude  in  toto. 

Art.  653. — Though  the  right  of  servitude  be  indivisible,  and  must 
be  established  for  the  whole,  and  not  for  a  part,  nothing  prevents  the 
advantage  resulting  from  it  from»being  divided,  if  it  be  susceptible  of 
division,  as  for  example,  the  right  of  taking  a  certain  number  of  loads 
of  earth  from  the  lands  of  another,  or  of  sending  to  pasture  a  certain 
number  of  animals  on  the  land  of  another. 

Art.  654. — The  part  of  an  estate  upon  which  a  servitude  is  exer- 
cised, does  not  cease  to  belong  to  the  owner  of  the  estate ;  he  who  has 


97  OF  SERVITUDES.  97 

the  servitude  has  no  right  of  property  iu  that  part,  but  only  the  right 
of  using  it. 

Hence  the  soil  of  public  roads  belongs  to  the  owners  of  the  land  on 
which  they  are  made,  though  the  public  has  the  use  of  them  ;  the  owners 
of  the  land  cannot  change  the  roads  except  in  conformity  with  the  re- 
gulations of  the  police  established  on  this  subject. 

Art.  655. — Servitudes  arise  either  from  the  natural  situation  of  the 
place,  from  the  obligations  imposed  by  law,  or  from  contract  between 
the  respective  owners. 

CHAPTER  II. 

OF    SERVITUDES    WHICH    ORIGINATE    FRO.M    THE    NATURAL    SITUATION    OF 

THE    PLACE. 

Art.  656. — It  is  a  servitude  due  by  the  estate  situated  below  to  re- 
ceive the  waters  which  run  naturally  from  the  estate  situated  above, 
provided  the  industry  of  man  has  not  been  used  to  create  that  servi- 
tude. 

The  proprietor  below  is  not  at  liberty  to  raise  any  dam,  or  to  make 
any  other  work,  to  prevent  this  running  of  the  water. 

The  proprietor  above  can  do  nothing  whereby  the  natural  servitude 
due  by  the  estate  below  may  be  rendered  more  bm'densome. 

12  L.  504 ;  13  L.  54;  14  L.  Ml ;  5  A.  424. 

Art.  657. — He  whose  estate  borders  on  running  water,  may  use  it 
as  it  ru.us,  for  the  purpose  of  watering  his  estate,  or  for  other  purposes. 

He  through  whose  estate  water  runs,  whether  it  originates  there  or 
passes  from  lands  above,  may  make  use  of  it,  while  it  runs  over  his 
land ;  but  he  cannot  stoj)  nor  give  it  another  direction,  and  is  bound  to 
return  it  to  its  ordinary  channel  where  it  leaves  his  estate. 

Art.  658. — Every  proprietor  has  a  right  to  make  an  inclosure  around 
his  lands. 

Art.  659. — He  may  compel  his  neighbors  to  fix  and  mark  the  limits 
of  their  estates  which  are  contiguous  to  his. 

The  limits  are  established,  and  boundary  stones  or  posts  placed  at 
their  joint  expense. 

CHAPTER  III. 

OF    SERVITUDES    IMPOSED    BY    LAW. 

Art.  660. — Servitudes  imposed  by  law  are  established  either  for  the 
public  or  common  utility,  or  for  the  utility  of  individuals. 

3  L.  557 ;  10  L.  55 ;  See  IS  L.  295. 

Art.  661. — Services  imposed  for  the  public  or  common  utility, 
relate  to  the  space  which  is  to  be  left  for  public  use  by  the  adjacent 
proprietors  on  the  shores  of  navigable  rivers,  aad  for  the  making  or  re- 
pairing of  levees,  roads,  and  other  public  or  common  works. 

All  that  relates  to  this  kind  of  servitude  is  determined  b;y  laws  or 
particular  regulations. 

8L.55T;  8A.4S2;  6  A.  77. 

7 


98  OF  SERVITUDES. 

Art.  662. — The  law  imposes  upon  the  proprietors  various  obliga 
tions  towards  one  another,  independent  of  all  agreements ;  and  those  are 
the  obligations  which  are  prescribed  in  the  following  articles. 

3  A.  440;  See  17  L.  3S9. 

Art.  663.— Although  a  proprietor  may  do  with  his  estate  whatever 
he  pleases,  still  he  cannot  make  any  work  on  it  which  may  deprive  his 
neighbor  of  the  liberty  of  enjoying  his  own,  or  which  may  be  the  cause 
of  any  damage  to  him. 

See  17  L.  889. 

Art.  664. — Although  one  be  not  at  liberty  to  make  any  work  by 
which  his  neighbor's  buildings  may  be  damaged,  yet  every  one  has  the 
liberty  of  doing  on  his  own  ground  whatsoever  he  pleases,  even  although 
it  should  occasion  some  inconvenience  to  his  neighbor. 

Thus  he  who  is  not  subject  to  any  servitude  originating  from  a  par- 
ticular agreement  in  that  respect,  may  raise  his  house  as  high  as  he 
pleases,  although  by  such  elevation  he  would  darken  the  lights  of  his 
neighbor's  house,  because  this  act  occasions  only  an  inconvenience,  but 
not  a  real  damage. 

Art.  665. — If  the  works  or  materials  for  any  manufactory  or  other 
operation  cause  an  inconvenience  to  those  in  the  same  or  in  the  neigh- 
boring houses,  by  diffusing  smoke  or  nauseous  smell,  and  there  be  no 
servitude  established  by  which  they  are  regulated,  their  sufferance  must 
be  determined  by  the  rules  of  the  police,  or  the  customs  of  the  place. 

Art.  666. — Every  one  is  bound  to  keep  his  buildings  in  repair,  so 
that  neither  their  fall,  nor  that  of  any  part  of  the  materials  composing 
them,  may  injure  the  neighbors  or  passengers,  under  the  penalty  of  all 
losses  and  damages  which  may  result  from  the  neglect  of  the  proprietor 
in  that  respect. 

Art.  667. — When  a  building  threatens  ruin,  the  neighbor  has  a 
right  of  action  against  the  proprietor  to  compel  him  to  cause  such  a  build- 
ing to  be  demolished  or  propped  up.  In  the  mean  time,  if  he  incurs  the 
danger  of  any  damage  by  its  fall,  he  may  be  authorized  to  make  the 
necessary  works,  for  which  he  shall  be  reimbursed  after  the  damage 
shall  have  been  ascertained  by  persons  of  the  art. 

Art.  668. — The  councils  and  other  municipal  bodies  of  cities  and 
other  incorporated  places  of  this  State,  are  authorized  to  make  such  re- 
gulations as  they  may  think  proper,  to  determine  the  mode  of  proceed- 
ing in  case  of  fire,  when  it  becomes  necessary  in  order  to  arrest  its  pro- 
gress, to  pull  down  houses  which  have  taken  fire,  or  even  those  which 
the  fire  has  not  reached. 

But  io  this  case  the  proprietors  whose  houses  have  been  pulled  down 
before  they  have  taken  fire,  shall  have  a  right  to  an  indemnification  in 
proportion  to  their  loss,  which  indemnification  shall  be  paid  by  the  cor- 
poration of  the  city  or  place  where  the  conflagration  has  taken  place, 
by  means  of  an  extraordinary  and  proportional  tax,  which  shall  be  laid 
to  this  effect  upon  all  proprietors  of  houses  of  the  said  place,  or  in  any 
other  manner,  from  the  funds  of  the  corjjoration. 

Art.  669. — He  who  builds  either  above  or  below  his  soil,  adjoining 
the  property  of  his  neigbor,  is  bound  to  build  in  a  perpendicular  line. 

Art.  670. — The  other  particular  services  imposed  by  law,  relate  to 
the  following  objects : 


99  OF  SERVITUDES.  99 

To  boundary  walls,  inclosures,  and  ditches ; 

To  cases  where  it  is  necessary  to  have  double  or  counter  walls  ; 

To  the  right  of  lights  on  the  property  of  a  neighbor  ; 

To  carrying  off  water  from  roofs  ; 

And  to  the  right  of  passages. 

3  A.  440 ;  Seo  11  L.  394 ;  16  L.  551. 

Section  I. —  Of  Walls,  Fences,  and  Ditches  in  common. 

Art.  671. — He  who  first  builds  in  the  cities,  towns,  or  suburbs  of 
this  State,  in  a  place  which  is  not  surrounded  by  walls,  may  rest  one 
half  of  his  wall  on  the  land  of  his  neighbor,  provided  he  builds  with 
stones  or  bricks  at  least  as  high  as  the  first  story,  and  not  in  frame  or 
otherwise  ;  and  provided  the  whole  thickness  of  this  wall  do  not  exceed 
eighteen  inches,  not  including  the  plastering,  which  must  not  be  more 
than  three  inches. 

But  he  cannot  compel  his  neighbor  to  contribute  to  the  raising  of 
this  wall. 

1  A.  140  ;  3  A.  440  ;  See  2  L.  531. 

Art.  672. — If  the  neighbor  be  willing  to  contribute  for  his  half  to 
the  building  of  the  wall  thus  raised,  then  this  wall  is  a  wall  in  common 
between  the  proprietors. 

The  neighbor  who  has  even  refused  to  contribute  to  the  raising  of 
this  wall,  preserves  still  a  right  of  making  it  a  wall  in  common,  by  pay- 
ing to  the  person  who  has  made  the  advance,  the  half  of  what  he  has 
laid  out  for  its  construction,  according  to  the  rules  hereafter  established. 

1  A.  140. 

Art.  673. — Every  wall  being  a  separation  betwixt  buildings  as  high 
as  the  upper  part  of  the  first  story,  or  betwixt  the  yard  and  garden  in 
the  cities,  towns,  and  suburbs  of  this  State,  and  even  any  other  inclo- 
sure  in  the  fields,  shall  be  presumed  to  be  in  common,  if  there  be  no 
title,  proof,  or  mark  to  the  contrary. 

6  A.  566. 

Art  674. — The  repairs  and  building  of  walls  in  common  are  to  be 
made  at  tlie  expense  of  all  who  have  a  right  to  the  same,  and  in  propor- 
tion to  their  interest  therein. 

Art  675. — Nevertheless  every  co-proprietor  of  a  wall  in  common 
may  be  exonerated  from  contributing  to  the  repairs  and  rebuilding,  by 
giving  up  his  right  of  common,  provided  no  building  belonging  to  hiiu 
be  actually  supported  by  the  wall  thus  held  in  common. 

Art.  676. — Every  co-proprietor  may  build  against  a  wall  held  in 
common,  and  cause  beams  or  joists  to  be  placed  within  two  inches  of 
the  whole  thickness  of  the  wall,  saving  to  the  neighbor  the  right  of 
diminishing  with  the  chisel  the  length  of  the  beam  till  it  do  not  exceed 
the  half  of  the  thickness  of  the  wall,  in  case  he  himself  should  wish  to 
fix  beams  in  the  same  place,  or  to  build  a  chimney  against  it. 

Art.  677. — Every  co-proprietor  is  at  liberty  to  increase  the  height 
of  the  wall  held  in  common,  but  he  alone  is  to  be  at  the  expense  of 
raising  it,  aud  of  repairing  and  keeping  the  part  above  the  height  of  the 
wall  in  common  in  good  order,  and  besides  he  alone  is  liable  for  all  ex- 
penses arising  from  its  being  raised  higher  according  to  its  value. 

IT  L.  889;  6  A.  506. 


100  OF  SERVITUDES. 

Art.  678. — If  the  wall  held  in  common  cannot  support  the  addi 
tional  weight  of  raising  it,  he  who  wishes  to  have  it  made  higher,  is 
bound  to  rebuild  it  anew  entirel}-  at  his  own  expense,  and  the  additional 
thickness  must  be  taken  from  his  property. 

17  L.  3S9  ;  6  A.  566. 

Art.  679. — The  neighbor  who  did  not  contribute  to  the  raising  of 
the  wall  held  in  common,  may  cause  the  raised  part  to  become  common 
by  paying  one-half  the  expense  of  such  raising,  and  the  value  of  the  half 
of  the  soil  employed  for  the  additional  thickness,  if  there  is  any. 

i3L.  2T1. 

Art.  680. — Every  proprietor  enjoying  a  wall  has,  in  like  manner, 
the  right  of  making  it  a  wall  in  common,  in  whole  or  in  part,  by  reim- 
bursing to  the  owner  of  the  wall  one-half  of  its  value,  or  the  half  of  the 
part  which  he  wishes  to  hold  in  common,  and  one-half  the  value  of  the 
soil  upon  which  the  wall  is  bu.ilt,  if  the  person  who  has  built  the  wall 
has  laid  the  foundation  entirely  upon  his  own  estate. 

1  A.  140 ;  3  A.  165. 

Art.  681. — -Neither  of  the  two  neighbors  can  make  any  cavity  within 
the  body  of  the  wall  held  by  them  in  common,  nor  can  he  affix  to  it  any 
work  without  the  consent  of  the  other,  or  without  having,  on  his  refusal, 
caused  the  necessary  precaution  to  be  used,  so  that  the  new  work  be  not 
an  injury  to  the  rights  of  the  other,  to  be  ascertained  by  persons  skilled 
in  building. 

IT  L.  3S9;  Ses  Arts.  1S05, 1811. 

Art.  682. — Every  one  has  a  right  to  compel  his  neighbor  within  the 
cities,  towns  and  suburbs  of  this  State,  to  contribute  to  the  making  and 
repairing  of  the  fences  held  in  common,  by  which  their  houses,  yards 
and  gardens  are  separated,  which  shall  be  made  in  the  manner  which  is 
or  may  be  prescribed  by  the  regulations  of  the  police  on  this  subject. 

And  if  one  of  the  proprietors  has  been  alone  at  the  expense  of  ma- 
king the  inclosures  held  in  common,  he  may  compel  the  other  to  make 
it  in  his  turn,  and  the  presumption  shall  be  that  the  inclosure  was  made 
by  him  on  whose  side  it  is  nailed,  unless  there  exists  a  voucher  or  proof 
to  the  contrary. 

Art.  683. — In  the  country  the  common  boundary  inclosures  between 
two  estates  are  made  at  the  expense  of  the  adjacent  estates,  if  the  es- 
tates are  inclosed ;  otherwise,  the  estate  which  is  not  inclosed,  is  not 
bound  to  contribute  to  it. 

Art.  684. — Every  fence,  which  separates  rural  estates,  is  considered 
as  a  boundary  inclosure,  unless  there  be  but  one  of  the  estates  inclosed, 
or  unless  there  be  some  title  or  proof  to  the  contrary. 

Art.  685. — Every  ditch  between  two  estates  shall  be  supposed  held 
in  common,  unless  there  be  a  voucher  or  proof  to  the  contraiy. 

Art.  686. — A  ditch  held  in  common  is  to  be  kept  at  the  expense  of 
the  two  contiguous  proprietors. 

Art.  687. — Every  proprietor  in  the  cities,  towns  or  suburbs  of  this 
State,  is  forbidden  to  plant  on  the  boundary  line  which  separates  his 
estate  from  that  of  his  neighbor,  trees  which  may  be  of  any  injury  what- 
soever to  his  neighbor. 

And  if  his  neighbor  suffers  any  damage  from  them,  he  can  oblige 


UU^^-f~^^^ 


101  OF  SERVITUDES.  10 : 

the  owner  to  have  them  torn  up  or  the  branches  of  them  cut  off,  which 
extend  over  his  estate. 

If  the  roots  only  extend  themselves  on  his  estate,  the  neighbor  has 
the  right  to  cut  them  up  himself. 

Section  II. — Of  the  Distance  ami  of  the  Intermediary  Works  required 
for  certain  Buildings. 

Art.  688. — He  who  wishes  to  dig  a  well  or  a  necessary,  to  build  a 
chimney,  or  hearth,  a  forge,  an  oven,  a  furnace  or  stable,  to  put  up. 
shelves  or  to  store  salt  or  other  corrosive  substances  near  a  wall,  whether 
held  in  common  or  not,  is  bound  to  leave  the  distance,  and  cause  to  be 
made  the  works  prescribed  by  the  regulations  of  the  police,  in  order  that 
his  neighbor  be  not  injured  thereby. 

And  if  there  be  no  regulations  of  police  upon  all  or  any  of  these 
subjects,  he  shall  conform  to  the  following  rules,  in  cases  which  have 
not  been  foreseen. 

Art.  689. — He  who  wishes  to  build  a  chimney  or  hearth  against  a 
wall  held  in  common,  is  bound  to  make  a  double  wall  of  brick  or  other 
proper  materials  six  inches  thick. 

Art.  690. — He  who  wishes  to  build  an  oven,  a  forge  or  a  furnace 
against  the  wall  held  in  common,  is  bound  to  leave  half  a  foot  interval 
and  vacancy  betwixt  such  wall  and  that  of  his  oven,  forge  or  furnace, 
and  this  last  wall  must  be  one  foot  thick. 

Art.  691. — He  who  wishes  to  dig  a  necessary  or  a  well  against  a 
wall,  whether  held  in  common  or  not,  is  bound  to  build  another  wall  one 
foot  thick  ;  and  when  there  is  a  well  on  one  side  and  a  necessary  on  the 
other,  there  shall  be  four  feet  masonry  betwixt  the  two,  including  the 
thickness  on  both  sides;  but  between  two  wells  three  feet  interval  are 
sufficient. 

Sec  18  L.  TO. 

Section  III. —  Of  Sights  on  the  Property  of  a  Neighbor. 

Art.  692. — One  neighbor  cannot,  without  the  consent  of  the  other, 
open  any  window  or  aperture  through  the  wall  held  in  common,  in  any 
manner  whatever,  not  even  with  the  obligation,  on  his  part,  to  confine 
himself  to  lights,  the  frames  of  which  shall  be  so  fixed  within  the  wall 
that  they  cannot  be  opened. 

Art.  693. — No  one  shall  build  galleries,  balconies  or  other  projec- 
tions on  the  border  of  an  estate,  so  that  they  extend  beyond  the  boun- 
dary line,  which  separates  it  from  the  adjoining  estates. 

Section  IV. — Of  the  Manner  of  carrying  off  Rain  from  the  Roof. 

Art.  694. — Every  proprietor  is  bound  to  fix  his  roof  so  that  the  rain- 
water fall  upon  his  own  ground,  or  on  the  public  road.  He  has  no  right 
to  cause  the  same  to  fall  on  his  neighbor's  ground. 

7  L.  52. 

Section  V. —  Of  the  Right  of  Passage  and  of  Way. 

Art.  695. — The  proprietor,  whose  estate  is  inclosed,  and  who  has 
no  way  to  the  public  road,  may  claim  the  right  of  passage  on  the  estate 


103  0¥  SERVITUDES. 

\ 
of  his  neighbors  for  the  cultivation  of  his  estate,  but  he  is  bound  to  in 
dcmnify  thorn  in  proportion  to  the  damage  he  may  occasion. 

11  L.  894;  16L.55;  6  A.  118. 

Art.  696. — The  owner  of  the  estate,  which  is  surrounded  by  other 
lands,  has  no  right  to  exact  the  right  of  passage  from  which  of  his  neigh- 
bors he  chooses. 

Tlie  passage  shall  be  generally  taken  on  the  side  where  the  distance 
is  the  shortest  from  the  inclosed  estate  to  the  public  road. 

Nevertheless,  it  shall  be  fixed  in  the  place  the  least  injurious  to  the 
person  on  whose  estate  the  passage  is  granted. 

IG  L.  55 ;  3  A.  56T,  697 ;  See  11  L.  394 

Art.  697. — It  is  not  always  the  owner  of  the  land  which  affords  the 
shortest  passage,  who  is  obliged  to  suflTer  the  right  of  passage ;  for  if  the 
estate,  for  which  the  right  of  passage  is  claimed,  has  become  inclosed 
by  means  of  sale,  exchange  or  partition,  the  vendor,  coparcener  or  other 
proprietor  of  the  land  reserved,  and  upon  which  the  right  of  passage  was 
before  exercised,  is  bound  to  furnish  the  purchaser  or  owner  of  the  land 
inclosed  with  a  passage  gratuitously,  and  even  when  it  has  not  been 
sold  or  transferred  with  the  rights  of  servitude. 

3  A.  56T. 

Art.  698 — A  passage  must  be  furnished  to  the  owner  of  the  land 
surrounded  by  other  lands,  not  only  for  himself,  his  slaves  and  workmen, 
but  for  his  animals,  carts,  instruments  of  agriculture,  and  every  thing 
which  may  be  necessary  for  the  use  and  working  of  his  land. 

11  L.  894;  16  L.  55;  See  Arts.  695,  696. 

Art.  699. — When  the  place  for  the  passage  is  once  fixed,  he  to  whom 
this  servitude  has  been  granted,  cannot  change  it,  but  he  who  owes  this 
servitude,  may  change  it  from  one  place  to  another,  in  order  that  it  may 
be  less  inconvenient  to  him,  provided  that  it  afford  the  same  facility  to 
the  proprietor  of  the  servitude. 

Art.  700. — Eoads  are  of  two  kinds,  public  and  private. 

3  A.  4S7. 

Art.  701. — Public  roads  are  those  which  are  made  use  of  as  high 
roads,  which  are  generally  furnished  and  kept  up  by  the  proprietors  of 
estates  adjacent  to  them. 

3  A.  4ST. 

Art.  702. — Private  roads  are  those  which  are  only  open  for  the 
benefit  of  certain  individuals  to  go  from  and  to  their  homes,  for  the  ser- 
vice of  their  lands,  and  for  the  use  of  some  estates  exclusively. 

3  A.  487;  See  16  L.  55. 

Art.  703. — He  who  from  his  title  as  owner  is  bound  to  give  a  public 
road  on  the  border  of  a  river  or  stream,  must  furnish  another  without 
any  compensation,  if  the  first  be  destroyed  or  carried  away. 

And  if  the  road  be  so  injured  or  inundated  by  the  water,  without 
being  carried  away,  that  it  becomes  impassable,  the  owner  is  obliged  to 
give  the  public  a  passage  on  his  lands,  as  near  as  possible  to  the  public 
road,  without  any  recompense  therefor. 

8  A.  437. 


103  OF  SERVITUDES.  103 

Art.  704. — The  action  of  indemnificatiou,  granted  against  the  per- 
son who  claims  the  passage,  may  be  barred  by  prescription,  and  the  pas- 
sage shall  be  continued,  although  the  action  in  indemnification  be  no 
longer  maintainable. 

11  L.  394. 

CHAPTER  IV. 

OF  CONVENTIONAL  OR  VOLUNTARY  SERVITUDES. 

Section  I. — Of  the  different  Kinds  of  Conventional  or  Voluntary 

Servitudes. 

Art.  705. — Proprietors  have  a  right  to  establish  on  their  estates,  or 
in  favor  of  their  estates,  such  servitudes  as  they  deem  proper  :  Provided 
nevertheless,  that  the  services  be  not  imposed  on  the  person  or  in  favor 
of  the  person,  but  only  on  an  estate  or  in  favor  of  an  estate ;  and  pro- 
vided moreover,  that  such  services  iinply  nothing  contrary  to  public 
order. 

The  use  and  extent  of  servitudes  thus  established,  are  regulated  by 
the  title  by  which  they  arc  granted,  and  if  there  be  no  title,  by  the  fol- 
lowing rules : 

Art.  706. — All  servitudes  are  established  either  for  the  use  of  houses 
or  for  the  use  of  lauds. 

Those  of  the  first  kuid  are  called  urban  servitudes,  whether  the 
buildings  to  which  they  are  due  be  situated  in  the  city  or  in  the 
country. 

Those  of  the  second  kind  are  called  rural  servitudes. 

Art.  707. — The  principal  kinds  of  urban  servitudes  are  the  follow- 

The  right  of  support ;  that  of  drip  ;  that  of  drain  or  of  preventing 
the  drain ;  that  of  view  or  of  lights,  or  of  preventing  the  view  or  lights 
from  being  obstructed  ;  that  of  raising  buildings  or  walls,  or  of  preventing 
them  from  being  raised  ;  that  of  passage,  and  that  of  drawing  water. 

7L.  62. 

Art.  708. — The  right  of  support  is  one  by  which  a  proprietor  stipu- 
lates that  his  neighbor  shall  be  bound  to  permit  that  his  house  or  his 
timbers  should  rest  on  the  wall  of  his  neighbor. 

In  these  servitudes,  the  owner  of  the  estate  subject  to  them  is  bound 
to  keep  his  wall  in  a  condition  to  bear  them,  unless  the  contrary  has  been 
agreed  upon ;  but  he  may  relieve  himself  from  this  charge  by  abandon- 
ing his  wall. 

The  servitude,  by  which  one  is  permitted  to  project  works  over  the 
estate  of  his  neighbor,  is  of  the  same  kind. 

Art.  709. — livery  pi-oprictor  is  bound  so  to  construct  his  roofs  that 
the  rain  falling  on  them  should  not  fall  on  the  land  of  his  neighbor,  but 
on  his  own  or  the  public  way. 

Tliis  falling  of  water  gives  rise  to  the  servitude  of  drip. 

The  servitude  of  drip  is  tliat  by  which  any  one  engages  to  permit  the 
waters  from  the  roof  of  his  iiciglibor  to  fall  on  liis  estate,  or  that  by  wliidi 
any  one  obliges  himself  to  suffer  the  waters  from  his  own  roof  to  fall  on 
the  estate  of  his  neighbor 


104  OF  SERVITUDES. 

Art.  710. — The  right  of  drain  consists  in  the  servitude  of  passing 
water  collected  in  pipes  or  canals  through  the  estate  of  one's  neighbor. 

This  servitude  is  different  from  the  right  of  drip,  because  the  charge 
it  imposes  is  more  onerous. 

It  is  much  less  inconvenient  to  receive  the  rain  which  falls  than  a 
body  of  water  which  may  carry  away  the  land  by  its  violence. 

The  contrary  servitude  is  the  right  of  preventing  this  passage  of 
water. 

Art.  711. — We  understand  by  view  every  opening  which  may,  more 
or  less,  facilitate  the  means  of  looking  out  of  a  building. 

Lights  are  those  openings  Avhich  are  made  rather  for  the  admission 
of  light,  than  to  look  out  of. 

Art.  712. — Servitudes  of  view  are  of  two  kinds:  one  which  confers 
the  right  of  full  view  with  the  power  of  preventing  one's  neighbor  from 
raising  any  buildings  which  obstruct  it,  and  the  other  which  gives  a  pro- 
prietor the  right  of  preventing  his  neighbor  from  having  any  view  or 
lights  on  the  side  on  which  their  estates  unite,  or  that  he  exercise  these 
servitudes  according  to  his  title. 

Art.  713. — Servitudes  of  lights  arc  also  of  two  kinds;  one  which 
gives  the  owner  of  a  house  the  right  of  opening  windows  in  a  wall  held 
in  common,  for  the  admission  of  light,  with  the  right  also  of  preventing 
his  neighbor  from  raising  any  building  which  can  obstruct  the  admission 
of  light :  and  the  other,  which  gives  the  right  of  preventing  one's  neigh- 
bor from  opening  his  wall,  or  a  wall  held  in  common,  for  the  admission 
of  light  from  a  yard,  or  other  place,  or  which  limits  him  to  certain  lights 
which  are  conferred  by  his  title 

Art.  714. — The  right  of  obliging  one's  neighbor  to  I'aise  his  wall 
to  a  certain  height ;  and,  on  the  contrary,  that  of  preventing  one's 
neighbor  from  raising  his  house  beyond  a  certain  height,  are  also  servi- 
tudes. 

Art.  715. — The  right  of  passage  in  cities  is  a  servitude  by  which  a 
proprietor  permits  his  neighbor  to  pass  through  his  house  or  lot  to  arrive 
at  his  own. 

This  servitude,  to  be  perpetual,  must  be  so  expressed  in  the  title ; 
otherwise,  it  ceases  with  the  person  who  enjoys  it,  and  does  not  pass  to 
his  heirs. 

Art.  716. — The  right  of  drawing  water  is  a  servitude  by  which  one 
suffers  his  neighbor  to  draw  water  from  the  well  or  spring  he  has  on  his 
laud ;  the  use  of  this  servitude  is  confined  to  those  who  live  in  the  house 
of  the  person  enjoying  the  servitude,  unless  the  contrary  be  expressed 
in  the  title. 

Art.  717. — The  principal  rural  servitudes  are  those  of  passage,  of 
way,  of  taking  water,  of  the  conducting  of  water  or  aqueduct,  of  water- 
ing, of  pasturage,  of  burning  brick  or  lime,  and  of  taking  earth  or  sand 
from  the  estate  of  another. 

See  11  L.  394 


105  OF  SERVITUDES.  105 

Art.  718. — The  right  of  passage  or  of  way  is  a  servitude  imposed 
by  law  or  by  convention,  and  by  virtue  of  which  one  has  a  right  to  pass 
on  foot,  on  horseback,  or  in  a  vehicle,  to  drive  beasts  of  burden  or  carts 
through  the  estate  of  another. 

When  this  servitude  results  from  the  law,  the  exercise  of  it  is  con- 
'  fined  to  the  wants  of  the  person  who  has  it. 

When  it  is  the  result  of  a  contract,  its  extent  and  the  mode  of  using 
it,  is  regulated  by  the  contract. 

See  11  L.  394. 

Art.  719. — The  right  of  drawing  water  from  the  spring  of  another 
is  also  a  servitude. 

Art.  720. — The  conducting  of  water  or  aqueduct  is  the  right  by 
which  one  conducts  water  from  his  estate  through  the  land  of  his  neigh- 
bor, by  means  of  an  aiiueduct  or  ditch. 

Art.  721. — The  right  of  watering  one's  animals  at  the  pond  or 
spring  of  another,  is  also  a  servitude. 

Art.  722. — Pa.sturage  is  the  right  of  feeding  one's  cattle  on  the 
estate  of  another.  • 

Art.  723. — Servitudes  are  either  continuous  or  discontinuous. 

Continuous  servitudes  are  those  whose  use  is  or  may  be  continual 
without  the  act  of  man. 

Such  arc  aqueducts,  drain,  view,  and  the  like. 

Interrupted  servitudes  are  such  as  need  the  act  of  man  to  be  exer- 
cised. 

Such  are  the  rights  of  passage,  of  drawing  water,  pasture,  and  the 
like. 

Sec  11  L.  894;  14  L.  173. 

Art.  724. — Again,  servitudes  are  either  visible  and  apparent  or  non- 
apparent. 

Apparent  servitudes  are  such  as  are  to  be  perceivable  by  exterior 
works,  such  as  a  door,  a  window,  an  aqueduct. 

Non-apparent  servitudes  are  such  as  have  no  exterior  sign  of  their 
existence,  such  for  instance,  as  the  prohibition  of  building  on  an  estate 
or  of  building  above  a  particular  height. 

Section  II. — Hoio  Servitudes  are  established. 

Art.  725. — The  right  ot  imposing  a  servitude  permanently  on  an 
estate  belongs  to  the  owner  alone. 

Art.  72G. — lie  who  has  the  naked  property  of  an  estate  cannot  sub- 
ject it  to  a  servitude  without  the  consent  of  the  usufructuary,  unless  it 
be  to  take  effect  at  the  termination  of  the  usufruct. 

Those  servitudes  which  do  no  injury  to  the  rights  of  the  usufructu- 
ary, such  as  that  of  not  raising  his  house  higher  than  it  is,  are  ex- 
cepted. 

Art.  727. — It  is  not  sufficient  to  be  an  owner  in  order  to  establish  a 
servitude ;  one  must  be  master  of  his  rights  and  have  the  power  to 
alienate ;  for  the  creation  of  a  servitude  is  an  alienation  of  a  part  of 
the  property. 

Thus  minors,  married  women,  persons  interdicted,  cannot  establish 


106  OF  SERVITUDES. 

servitudes  on  their  estates,  except  according  to  the  forms  prescribed  foi 
the  alienation  of  their  property. 

Art.  728. — The  husband  cannot  establish  a  servitude  on  the  dotal 
property  of  his  wife,  even  with  her  consent,  unless  it  be  expressly  sti 
pulated  in  the  marriage  contract  that  he  shall  be  permitted  to  alienate 
her  dotal  property  with  her  consent. 

Art.  729. — An  attorney  in  fact  cannot  impose  a  servitude  on  the 
estate  intrusted  to  him,  without  a  special  power  to  that  effect. 

Art.  730. — Coi'porations  can  only  establish  servitudes  on  their  pro- 
perty in  the  cases  and  with  the  forms  in  which  they  can  alienate. 

Art.  731. — The  purchaser,  with  a  reservation  of  redemption,  may 
impose  servitudes  on  the  property  acquired  by  him ;  but  they  cease  if 
the  redemption  takes  effect. 

Art.  732. — Those  who  have  not  the  full  property,  whose  property 
in  the  estate  ceases  on  a  certain  condition,  or  at  a  particular  time,  may 
establish  servitudes  thereon,  but  they  cease  with  their  rights,  and  those 
in  whose  favor  the  servitudes  are  established  cannot  avail  themselves 
of  prescription,  because  before  that  time  no  action  for  the  dissolution 
of  the  servitude  could  be  instituted  against  them. 

Art.  733. — The  usufructuary  cannot  establish  on  the  estate  of  which 
he  has  the  usufruct  any  charges  in  the  nature  of  services,  because  they 
of  necessity  cease  with  the  usufruct. 

Art.  734. — The  co-proprietor  of  an  undivided  estate  cannot  im- 
pose a  servitude  thereon,  without  the  consent  of  his  co-proprietor. 

The  contract  of  servitude,  however,  is  not  null ;  its  execution  is 
suspended  until  the  consent  of  the  co-proprietor  is  given. 

Art.  735. — The  co-proprietor  who  has  consented  to  the  establish- 
ment of  a  servitude  on  property  held  in  common,  cannot  prevent  the 
exercise  of  the  servitude  by  objecting  that  the  consent  of  his  co-pro- 
prietor has  not  been  given. 

If  he  becomes  owner  of  the  whole  estate,  he  is  bound  to  permit  the 
exercise  of  the  servitude  to  which  he  has  before  consented. 

Art.  736. — If  the  co-proprietor  has  established  the  servitude  for  his 
part  of  the  estate  only,  the  consent  of  tlic  other  owners  is  not  necessary, 
but  the  exercise  of  tlie  servitude  must  be  suspended  until  his  part  be 
ascertained  by  a  partition.  In  this  case,  he  to  whom  the  servitude  has 
been  granted,  may  compel  the  co-i^roprietor  from  whom  he  received  it, 
to  vSue  for  a  partition,  or  may  sue  for  it  himself. 

Art.  737. — If  in  the  suit  for  a  partition  it  be  determined  that  the 
estate  be  disposed  of  by  licitatiou,  and  he  who  has  granted  the  servitude 
becomes  proprietor  of  the  whole,  the  servitude  then  exists  on  the  whole 
estate,  as  if  he  had  alwa'  s  been  the  sole  owner. 

But  if  by  the  licitatiou  the  estate  be  adjudicate  1   to  any  other  of 


107  OF  SERVITUDES.  107 

the  co-proprietors,  the  servitude  becomes  cxtiuct,  and  the  person  who 
granted  it  is  bound  to  return  the  price  he  received  for  it. 

Akt.  738. — If  a  co-proprietor  who  has  established  a  servitude,  sells 
his  undivided  portion  to  a  person,  who  afterwards,  by  licitation,  becomes 
owner  of  the  whole,  he  is,  like  his  vendor,  bound  to  permit  the  cxei'cisc 
of  tlie  servitude  on  the  whole  estate. 

Art.  739. — Servitudes  are  established  by  all  acts  by  which  property 
can  be  transferred,  and  as  they  are  not  susceptible  of  real  delivery,  the 
use  wliich  the  owner  of  the  estate  to  whom  the  servitude  is  granted, 
makes  of  this  right,  supplies  the  place  of  delivery. 

Art.  740. — Servitudes  may  be  established  on  all  things  susceptible 
of  ownership,  even  on  the  public  domain,  on  the  common  property  of 
cities  and  other  incorporated  places. 

Art.  741. — It  is  not  contrary  to  the  nature  of  servitudes  that  the 
same  servitude  should  be  established  on  several  estates  for  tlie  benefit 
of  one,  or  that  the  same  estate  should  be  subject  to  a  servitude  for  the 
benefit  of  several  estates. 

Art.  742. — By  the  title  by  which  a  servitude  is  established  in  fa- 
vor of  an  estate,  a  servitude  may  also  be  imposed  on  the  estate,  for  the 
benefit  of  the  estate  from  which  the  first  servitude  is  due. 

In  cases  where  there  are  reciprocal  servitudes,  all  the  rules  concern- 
ing simple  servitudes  are  applicable. 

Art.  743. — A  servitude  may  be  established  or  acquired  in  favor  of 
an  estate  which  does  not  exist,  or  of  which  one  is  not  yet  the  owner  ;  but 
if  tlie  hope  of  becoming  the  owner  be  not  realized,  the  servitude  falls. 

It  may  also  be  stipulated  that  an  edifice  not  yet  built,  shall  support 
a  servitude ;  or,  shall  have  the  benefit  of  one  when  it  is  built. 

Art.  744. — A  servitude  may  be  established  or  released  for  a  certain 
part  of  an  estate,  provided  the  part  be  designated. 

Art.  744. — He  whose  estate  is  encumbered  with  a  servitude,  may 
impose  on  it  other  servitudes  of  any  kind,  provided  they  do  not  aflfcct 
the  rights  of  him  who  has  acquired  the  first. 

Art.  746. — An  estate  being  mortgaged  docs  not  prevent  the  owner 
from  establishing  servitudes  on  it,  saving  always  to  the  creditor  the 
right  of  demanding  liis  debt,  if  the  establislimcnt  of  the  servitude  evi- 
dently depreciates  tlie  value  of  the  estate,  or  of  causing  the  estate  to  be 
sold  as  free  from  all  servitudes ;  but  the  person  who  has  actjuired  the 
servitude,  shall  have  in  such  case  his  action  for  the  restitution  of  the 
value  of  the  servitude  against  the  owner  of  the  estate. 

Art.  747. — The  exercise  of  servitudes  may  be  limited  to  certain 
times.  Thus  the  right  of  drawing  water  may  be  confined  to  certain 
houts,  the  right  of  passage  to  a  part  of  the  day. 

Art.  748. — Legal  servitudes,  and  even  those  which  result  from  the 
situation  of  places,  may  be  altered  by  the  agreement  of  parties,  provided 
the  public  interest  does  not  suffer  tlicreby. 

Art.  749. — Servitudes  which  tend  to  affect  the  free  use  of  property, 


108  OF  SERVITUDES. 

in  case  of  doubt  as  to  tlieir  extent  or  the  manner  of  using  them,  are  al 
ways  interpreted  in  favor  of  the  owner  of  the  property  to  be  aifected. 

Art.  750. — Servitudes  being  established  on  estates  in  favor  of  other 
estates,  and  not  in  favor  of  persons,  if  the  grant  of  the  right  deckre  it 
to  be  for  the  benefit  of  another  estate,  there  can  be  no  doubt  as  to  the 
nature  of  this  right,  even  though  it  should  not  be  called  a  servitude. 

Art.  751. — If,  on  the  other  hand,  the  act  establisliing  the  servitude 
does  not  declare  that  the  right  is  given  for  the  benefit  of  an  estate,  but 
to  a  person  who  is  the  owner  of  it,  it  must  then  be  considered  whether 
the  right  granted  be  of  real  advantage  to  the  estate,  or  merely  of  per- 
sonal convenience  to  the  owner. 

Art.  752. — If  the  right  granted  be  of  a  nature  to  assure  a  real  ad- 
vantage to  an  estate,  it  is  to  be  presumed  that  such  right  is  a  real  ser- 
vitude, although  it  may  not  be  so  styled. 

Thus,  for  example,  if  the  owner  of  a  house  contiguous  to  lands  bor- 
dering on  the  high  road,  should  stipulate  for  the  right  of  passing  through 
lands,  without  it  being  expressed  that  the  passage  is  for  the  use  of  his 
house,  it  would  be  not  the  less  a  real  servitude,  for  it  is  evident  that 
the  passage  is  of  real  utility  to  the  house. 

Art.  753. — If,  on  the  other  hand,  the  right,  from  its  nature,  is  a 
matter  of  mere  personal  convenience,  it  is  considered  personal,  and  can- 
not be  made  real  but  by  express  declaration  of  the  parties. 

Thus,  for  example,  if  the  owner  of  a  house  near  a  garden  or  park, 
should  stipulate  for  the  right  of  walking  and  gathering  fruits  and  flowers 
therein,  this  right  would  be  considered  personal  to  the  individual,  and 
not  a  servitude  in  favor  of  the  house  or  its  owner. 

But  the  right  becomes  real  and  is  a  predial  servitude,  if  the  person 
stipulating  for  the  servitude,  acquires  it  as  owner  of  the  house,  and  for 
himself,  his  heirs  and  assigns. 

Art.  754. — When  the  right  granted  is  merely  personal  to  the  indi- 
yidual,  it  expires  with  him,  unless  the  contrary  has  been  expressly  stip- 
ulated. 


Section  III. — Hoiv  Servitudes  are  acquired. 

Art.  755. — Those  who  can  establish  servitudes  on  their  lands  can 
also  acquire  servitudes. 

There  are  some  persons  who  cannot  establish  servitudes,  who  never- 
theless can  acquire  them  ;  such  as  those  who  cannot  exercise  their  rights, 
minors,  women  not  authorized,  administrators,  tutors,  husbands  ;  for  the 
acquisition  of  a  servitude  augments  the  value  and  convenience  of  an 
estate. 

Art.  756. — He  who  assumes  the  quality  of  owner,  and  enjoys  an 
estate  as  such  in  good  or  bad  faith,  he  who  acts  in  the  name  of  the 
owner,  though  he  have  no  mandate  from  the  owner,  can  acquire  servi- 


^09  OF  SERVITUDES.  lOe 

tudes,  and  the  person  granting  them  cannot  afterwards  revoke  tliera,  for 
it  is  not  to  the  person  but  to  the  estate  thej  are  granted. 

Art.  757. — Nevertheless,  in  all  the  cases  mentioned  in  the  preceding 
articles,  if  the  minor,  the  woman  not  authorized,  or  the  owner  find  the 
contract  onerous,  they  can  annul  it  or  refuse  to  execute  it  by  renouncing 
the  servitude. 

Art.  758. — Even  those  who  arc  neither  owners  nor  representatives 
of  the  owner,  and  who  have  not  expressly  assumed  the  quality  of  acting 
in  his  name,  may  acquire  a  servitude  for  the  benefit  of  the  estate  they 
possess,  when  such  is  the  condition  of  the  contract  they  make. 

Art.  759. — One  of  the  owners  of  property  held  in  common  may 
stipulate  for  a  servitude  for  the  benefit  of  the  property  in  common,  be- 
cause the  partnership,  which  exists  between  him  and  his  co-proprietor, 
authorizes  him  and  makes  it  his  duty  to  ameliorate  the  property  in 
common. 

Nevertheless,  the  co-proprietors  may  refuse  to  avail  themselves  of 
this  servitude,  and  allege  that  the  acquisition  of  the  servitude  is  not  an 
act  of  mere  administration,  but  an  innovation  on  the  estate,  which  ought 
not  to  have  been  made  without  their  consent.  But  this  exception  exists 
only  in  their  favor  and  cannot  be  taken  advantage  of  by  him  who  has 
granted  the  servitude,  in  order  to  exonerate  himself  from  his  engagement. 

Art.  760. — The  usufructuary  may  acquire  a  servitude  in  favor  of 
an  estate  of  which  he  has  the  usufruct,  if  he  declare  that  he  acts  for  the 
owner,  or  if  he  stipulates  that  the  servitude  is  established  in  favor  of 
all  those  who  shall  possess  the  estate  after  him ;  but  if  in  the  act  by 
which  the  servitude  is  acquired,  he  takes  merely  the  quality  of  usufruc- 
tuary, without  expressing  at  the  same  time  that  he  contracts  for^  all 
those  who  may  succeed  him  in  the  possession  of  the  estate,  the  right 
terminates  with  the  usufruct,  and  the  owner  cannot  claim  a  servitude, 
which  has  not  attached  to  the  estate  subject  to  the  usufruct,  or  which 
has  only  attached  for  the  time  of  the  usufruct. 

^P^T.  761. — Continuous  and  apparent  servitudes  may  be  acquired  by 
title  or  by  a  possession  of  ten  years,  if  the  parties  be  present,  and  twen- 
ty years  if  absent. 

•'   •'  See  11  L.  854. 

Art.  762. — Continuous  non-apparent  servitudes,  and  interrupted 
servitudes,  whether  apparent  or  not,  can  be  established  only  by  a  title. 

Immemorial  possession  itself  is  not  sufficient  to  acquire  them. 

Immemorial  possession  is  that  of  which  no  man  living  has  seen  the 
beginning,  and  the  existence  of  which  he  has  learned  from  his  elders. 

5  R.  16 ;  1  A.  407 ;  3  A.  1G6 ;  Sco  11  L.  394 ;  14  L.  173. 

Art.  763. — The  use  which  the  owner  has  intentionally  established  on 
a  particular  part  of  his  property  in  favor  of  another  part,  is  equal  to  a 
title,  with  respect  to  perpetual  and  apparent  servitudes  thereon. 

By  this  is  meant  the  disposition  which  the  owner  of  two  or  more  es- 
tates has  made  for  their  respective  use. 

1  A.407. 

Art.  764. — Such  intention  is  never  presumed  till  it  has  been  proved 
that  both  estates,  now  divided,  have  belonged  to  the  same  proprietor,  and 
that  it  is  by  him  that  the  things  have  been  placed  iu  the  situation  from 
jyhich  the  servitudes  result. 


no  OF  SERVITUDES. 

Art.  765. — If  the  proprietor  of  two  estates,  between  which  there 
exists  an  apparent  sign  of  servitude,  sell  one  of  those  estates,  and  if  the 
deed  of  sale  be  silent  respecting  the  servitude,  the  same  shall  continue 
to  exist  actively  or  passively  in  favor  or  upon  the  estate  which  has  been 
sold. 

4L.  312;  5K.  IG. 

Art.  766. — The  title  by  which  such  servitudes  are  established,  as 
cannot  be  acquired  by  prescription,  can  be  replaced  only  by  a  title,  by 
which  such  servitude  is  acknowledged  by  the  owner  of  the  estate  which 
owes  the  servitude,  or  by  a  final  judgment  condemning  him  to  permit  the 
exercise  of  the  servitude. 

Art.  767. — When  a  servitude  is  established,  every  thing  which  is 
necessary  to  use  such  servitu^le  is  supposed  to  be  granted  at  the  same 
time  with  the  servitude. 

Thus  the  servitude  of  drawing  water  out  of  a  spring  carries  necessa- 
rily with  it  the  right  of  passage. 

But  the  passage,  in  this  case  and  in  all  others  in  which  it  is  permit- 
ted as  an  accessory  to  some  or  other  servitude,  must  be  made  in  the 
way  the  most  direct,  the  shortest  and  the  least  inconvenient  to  the  estate 
subject  to  the  servitude. 

Section  IV. —  Of  the  Rights  of  the  Projjrietor  of  the  Estate  to  which 
the  Servitude  is  due. 

Art.  768. — He  to  whom  a  servitude  is  due,  has  a  right  to  make  all 
the  works  necessary  to  use  and  preserve  the  same. 

14  L.  161 ;  3  A.  134. 

Art.  769. — Such  works  are  at  his  expense,  and  not  at  the  expense 
of  the  owner  of  the  estate  which  owes  the  servitude,  unless  the  title  by 
which  it  is  established  shows  the  contrary. 

Art.  770. — The  owner  of  the  estate,  to  which  the  servitude  is  due, 
has  the  right  to  go  on  the  estate  which  owes  the  servitude  with  his  work- 
men, in  the  place  where  it  is  necessary  to  construct  or  repair  the  works 
necessary  for  the  exercise  of  the  servitude,  to  deposit  there  the  materials 
necessary  for  those  works  and  the  rubbish  made  thereby,  under  the  obli- 
gation of  causing  the  least  possible  damage  and  of  removing  them  as 
soon  as  possible. 

Nevertheless,  if  in  the  act  establishing  the  servitude,  it  is  said  that 
the  owner  to  whom  it  had  been  granted  cannot  construct  works  in  order 
to  exercise  it,  or  can  only  construct  them  in  a  certain  manner,  this  agree- 
ment must  be  observed. 

14  L.  161 ;  3  A.  134. 

Art.  771. — Even  in  the  cases  where  the  o\vner  of  the  estate  which 
owes  the  servitude,  is  bound  by  the  title  to  make  the  necessary  works  for 
the  use  and  preservation  of  the  servitude,  at  his  own  expense,  he  may 
always  exonerate  himself  by  giving  up  the  estate  which  owes  the  servi- 
tude to  the  owner  of  the  estate  to  which  it  is  due. 

Art.  772. — If  the  estate  for  which  the  servitude  has  been  established 
comes  to  be  divided,  the  servitude  remains  due  for  each  portion,  provi 
ded  that  no  additional  burden  accrue  thereby  to  the  estate  which  is  sub- 
ject to  the  servitude. 


Ill  OF  SERVITUDES.  1 1 1 

Thus,  for  instance,  in  case  of  a  right  of  passage,  all  the  proprietors 
are  bound  to  exercise  that  right  through  the  same  place. 

Art.  773. — The  proprietor  of  the  estate  which  owes  the  servitude  can 
do  nothing  tending  to  diminish  its  use,  or  to  make  it  more  inconvenient. 

Thus  he  cannot  change  the  condition  of  the  premises,  nor  transfer 
the  exercise  of  the  servitude  to  a  place  diifcrcnt  from  that  on  which  it 
was  assigned  in  the  first  instance. 

Yet  tif  this  primitive  assignment  has  become  more  burdensome  to 
the  proprietor  of  the  estate  which  owes  the  servitude,  or  if  lie  is  thereby 
prevented  from  making  advantageous  repairs  on  his  estate,  he  may  offer 
to  the  projjrietor  of  the  other  estate  a  place  equally  convenient  for  the 
exercise  of  his  rights,  and  the  owner  of  the  estate  to  which  the  servitude 
is  due  cannot  refuse  it. 

Art.  774. — On  the  other  hand,  he  who  has  a  right  of  servitude,  can 
use  it  only  according  to  his  title,  without  being  at  liberty  to  make  either 
in  the  estate  which  owes  the  servitude,  or  in  that  to  which  the  servitude 
is  due,  any  alteration  by  which  the  condition  of  the  first  may  be  made 
worse. 

Art.  775. — If  the  manner  in  which  the  servitude  is  to  be  used  is 
uncertain,  as  if  the  place  necessary  for  the  exercise  of  the  right  of  pas- 
sage is  not  designated  in  the  title,  the  owner  of  the  estate  which  owes 
the  servitude,  is  bound  to  fix  the  place  where  he  wishes  to  be  exercised. 

1  E.  321 ;  5  A.  5T7. 

Art.  776. — If  the  title  by  which  a  passage  is  granted  does  not  des- 
ignate its  breadth,  nor  the  manner  in  which  it  is  to  be  used,  whether  on 
foot,  or  horseback,  or  with  carriages,  the  use,  which  the  person  to  whom 
the  servitude  is  granted,  previously  made  of  it,  will  serve  to  interpi'et 
the  title. 

If  there  was  no  such  use  made  of  it  before,  the  probable  intention 
of  tlie  parties  must  be  considered,  and  the  purpose  for  which  the  pas- 
sage is  granted. 

If  these  circumstances  can  afford  no  light,  it  must  be  decided  in  fa- 
vour of  the  land  which  owes  the  servitude,  and  a  foot  passage  must  be  ^ 
conceded  eiglit  feet  wide,  where   it  is  straight,  and  ten  feet  wide  where 
turns. 

Art.  777. — If  the  passage  be  agreed  upon,  without  the  time  or  the 
hour  being  fixed,  it  is  necessary  to  make  a  distinction ;  if  the  passage  be 
through  a  place  not  closed,  it  may  be  used  at  any  hour  and  even  in  the 
night ;  for  at  any  hour  a  person  may  want  to  pass ;  but  if  it  be  through  a 
place  which  is  closed  for  the  security  of  the  owner,  the  right  of  passage 
can  be  exercised  only  at  convenient  hours ;  for  it  would  be  unreasonable 
that  a  yard  or  house  should  be  left  open  at  all  hours  of  the  night. 

Art.  778. — The  right  of  opening  lights  or  of  view,  granted  indefin- 
itely to  him  who  is  about  building,  gives  him  the  privilege  of  opening 
all  the  windows  which  may  be  necessary  to  light  or  embellish  his  house 
and  tlie  buildings  attached  to  it,  to  give  to  the  windows  the  form  and 
size  he  may  think  proper  to  adopt,  because  such  is  presumed  to  have 
been  the  intention  of  the  parties. 

But  after  the  buildings  are  all  finished,  the  possession  and  situation 
of  the  ground  determine  the  extent  of  the  servitude,  and  the  owner  can 
neither  multiply  nor  enlarge  his  windows. 


112  OF  SERVITUDES. 

Section  V. — How  Servitudes  arc  extinguished. 

Art.  779. — Servitudes  are  extinguished : 

1.  By  the  destruction  of  the  estate  which  owes  the  servitude,  or  of 
that  to  which  the  servitude  is  due,  or  by  such  a  change  taking  place 
that  the  thing  subject  to  the  servitude  cannot  be  used ; 

2.  By  prescription  resulting  from  non-usage  of  the  servitude  during 
the  time  required  to  produce  its  extinction ; 

T  L.  52. 

3.  By  confusion ; 

4.  By  the  abandonment  of  that  part  of  the  estate  which  owes  the 
servitude ; 

5.  By  the  renunciation  of  the  servitude  on  the  part  of  him  to  whom 
it  is  due,  or  by  the  express  or  tacit  remission  of  his  right ; 

6.  By  the  expiration  of  the  time  for  which  the  servitude  was  granted, 
or  by  the  happening  of  the  dissolving  condition  attached  to  the  servi- 
tude ; 

7.  By  the  dissolution  of  the  right  of  him  who  established  the 
servitude.  s 

Art.  780. — Servitudes  are  extinguished  when  the  things  are  in  such 
a  situation  that  they  can  no  longer  be  used,  and  when  they  remain  per- 
petually in  such  a  situation. 

Art.  781. — If  the  things  are  re-established  in  such  a  manner  that 
they  may  be  used,  the  servitudes  will  only  have  been  suspended,  and 
they  resume  their  effect,  unless,  from  the  time  they  ceased  to  be  used, 
sufficient  time  has  elapsed  for  prescription  to  operate  against  them. 

Art.  782. — If  a  wall  in  common,  or  a  house  subject  to  a  servitude, 
or  to  which  a  servitude  is  due,  is  rebuilt  after  having  been  destroyed, 
demolished  or  thrown  down,  all  the  servitudes,  active  and  passive, 
which  existed  on  this  wall  or  house,  continue  to  exist  on  the  new  wall 
or  house,  but  they  cannot  be  augmented ;  provided  always  that  they  be 
rebuilt  within  such  a  time  that  prescription  has  not  operated  against 
them,  as  is  mentioned  in  the  following  articles. 

Art.  783. — If,  the  house  or  edifice  which  has  been  destroyed,  de- 
molished or  thrown  down  by  any  accident,  belonged  to  the  proprietor 
to  whom  the  servitude  is  due,  the  servitude  will  be  extinguished,  if  he 
does  not  rebuild  the  house  or  edifice  within  the  time  required  for  pre- 
scription, because  it  depended  on  him  alone,  by  rebuilding  his  house,  to 
revive  the  servitude  it  enjoyed. 

Art.  784. — If,  on  the  contrary,  it  is  the  house  or  edifice  subject  to 
the  servitude,  which  has  been  destroyed,  demolished  or  thrown  down, 
the  owner  cannot,  by  rebuilding  it  after  the  time  required  for  prescrip- 
tion, impair  the  servitude  to  which  the  house  or  edifice  was  previously 
subject,  because  he  to  whom  the  servitude  was  due  had  not  the  power  to 
compel  the  other  to  rebuild  the  house  or  edifice  thus  destroyed. 

Art.  785. — A  right  to  servitude  is  extinguished  by  the  non-usage 
of  the  same  during  ten  years,  if  the  parties  be  present,  and  twenty 
years,  if  absent. 

1  K.  321. 

Art.  786. — The  time  of  prescription  for  non-usage  begins,  for  inter- 
rupted servitudes,  from  the  day  they  ceased  to  be  used ;  for  continuous 


113  OF  SERVITUDES.  US 

servitudes,  from  the  day  any  act  contrary  to  the  seiTitude  has  been 
committed. 

1  E.  321. 

Art.  787. — Acts  contrary  to  the  servitude  are  the  destruction  of 
works  necessary  for  its  exercise,  as  the  stopping  of  spouts  which  carry 
off  rain,  or  of  windows  or  apertures  which  are  necessary  to  the  exercise 
of  the  right  of  view. 

Art.  788. — If  the  owner  of  the  estate  to  whom  the  servitude  is  due, 
is  prevented  from  using  it  by  any  obstacle  which  he  can  neither  prevent 
nor  remove,  the  prescription  of  non-usage  does  not  run  against  him  as 
long  as  this  obstacle  remains. 

Art.  789. — To  pi'eserve  the  right  of  servitude,  and  prevent  pre- 
scription from  running  against  it,  it  is  not  necessary  that  it  should  be 
exercised  exclusively  by  the  proprietor  to  whom  it  is  due,  or  by  those 
who  use  his  rights,  or  who  represent  him  directly,  as  the  usufructuary, 
the  lessee  or  tenant,  the  attorney  in  fact  or  agent.  It  suffices  if  the 
servitude  has  been  exercised  by  workmen  employed  by  the  proprietor, 
his  slaves,  his  friends,  or  those  who  come  to  see  him. 

Art.  790. — The  servitude  is  preserved  to  the  owner  of  the  estate  to 
which  it  is  due,  by  the  use  which  any  one,  even  a  stranger,  makes  of  it, 
provided  it  be  used  as  appertaining  to  the  estate. 

Thus  the  servitude  is  preserved  to  the  owner  by  the  use  which  a 
possessor  in  bad  faith,  who  is  in  possession  of  the  estate  to  whom  it  is 
due,  makes  of  the  servitude. 

But  if  any  one  passes  over  the  land  of  another,  considering  the  way 
as  public,  or  as  belonging  to  another  estate,  the  owner  of  the  estate  to 
whom  the  servitude  is  due,  cannot  avail  himself  of  the  use  thus  made  of 
the  servitude,  to  protect  himself  against  the  prescription  which  may 
have  been  acquired  against  himself. 

Art.  791. — Prescription  for  non-usage  does  not  take  place  against 
natural  or  necessary  servitudes,  which  originate  from  the  situation  of 
places. 

1  R.  321. 

Art.  792. — The  mode  of  servitude  is  subject  to  prescription  as  well 
as  the  servitude  itself,  and  in  the  same  manner. 

By  mode  of  servitude,  in  this  case,  is  understood  the  manner  of 
using  the  servitude,  as  is  prescribed  in  the  title. 

Art.  793. — If  he  to  whom  a  servitude  is  due,  enjoys  a  right  more 
extensive  than  that  which  is  given  him  by  tlie  act  establishing  the  servi- 
tude, he  will  be  considered  as  having  preserved  his  right  of  servitude ; 
because  the  less  is  included  in  the  greater. 

But  he  cannot  thus  prescribe  for  the  surplus,  and  can  be  compelled 
to  confine  himself  to  the  exercise  of  the  servitude  granted  by  his  title, 
unless  it  be  a  continuous  or  apparent  servitude,  which  ae  has  acquired 
by  prescription. 

Art.  794. — If,  on  the  contrary,  the  owner  has  enjoyed  a  right  less 
extensive  than  is  given  him  by  his  title,  the  servitude,  whatever  be  its 
nature,  is  reduced  to  that  which  is  preserved  by  possession,  during  the 
time  necessary  to  establish  prescription. 
8 


114  .OF  SERVITUDES. 

Art.  795. — If  the  owner  has  merely  enjoyed  an  accessory  right,  which 
was  necessary  to  his  right  of  servitude,  he  will  not  be  considered  as  hav- 
ing used  his  right  of  servitude. 

For  example,  he  who  has  the  right  of  drawing  water  from  the  well 
of  his  neighbor,  has  passed  often  through  the  land  of  the  latter,  and  gone 
to  the  well  without  drawing  any  water  during  the  time  required  for 
prescription,  he  will  have  lost  his  right  of  drawing  water,  without  acqui- 
ring that  of  passage,  which  was  merely  accessory  to  the  right  of  drawing 
water. 

Art.  796. — If  the  owner  has  used  another  servitude  than  that  grant- 
ed to  him,  without  using  the  latter,  he  may  lose  this  last  for  non-usage 
during  the  time  required  for  prescription,  without  acquiring  that  which 
he  has  used,  if  it  be  an  interrupted  or  non-apparent  servitude. 

Art.  797. — If  the  estate  in  whose  favor  the  servitude  is  established, 
belongs  to  several,  and  has  never  been  divided,  the  enjoyment  of  one 
bars  prescription  with  respect  to  all. 

Art.  798. — If  among  the  co-proprietors  there  be  one  against  whom 
prescription  cannot  run,  as  for  instance  a  minor,  he  shall  preserve  the 
right  of  all  the  others. 

Art.  799. — When  the  estate  to  which  the  servitude  is  due,  ceases 
to  be  undivided,  by  means  of  a  partition,  each  of  those  who  were  the 
co-proprietors,  only  preserves  the  servitude  by  the  use  he  makes  of  it, 
and  the  others  lose  it  by  non-usage  during  the  time  required  for  pre- 
scription. 

If  a  servitude  be  due  to  several  persons,  but  on  different  days,  as  the 
right  of  drawing  water,  he  who  does  not  exercise  his  right,  loses  it,  and 
the  estate  subject  to  the  servitude  becomes  free  from  it,  as  respects 
him. 

Art.  800. — When  the  prescription  of  non-usage  is  opposed  to  the 
owner  of  the  estate  to  whom  the  servitude  is  due,  it  is  incumbent  on  him 
to  prove  that  he,  or  some  person  in  his  name,  has  made  use  of  this  ser- 
vitude as  appertaining  to  his  estate,  during  the  time  necessary  to  pre- 
vent the  establishment  of  the  prescription. 

1  E.  321. 

Art.  801. — Every  servitude  is  extinguished,  when  the  estate  to 
which  it  is  due,  and  the  estate  owing  it,  are  united  in  the  same  hands. 

But  it  is  necessary  that  the  whole  of  the  two  estates  should  belong 
to  the  same  proprietor ;  for  if  the  owner  of  one  estate  only  acquires  the 
other  in  part  or  in  common  with  another  person,  confusion  does  not  take 
effect. 

Art.  802. — If  the  union  of  the  two  estates  be  made  only  under  a 
condition,  or  if  it  cease  by  legal  eviction ;  if  the  title  be  thus  destroyed 
either  by  the  happening  of  the  condition  or  by  legal  eviction,  the  servi- 
tudes revive  wh-ich,  in  the  mean  time,  will  have  been  rather  suspended 
than  extinguished. 

Thus  the  exercise  of  redemption,  the  happening  of  the  condition  on 
which  the  estate  terminates,  the  eviction  from  a  succession  by  a  nearer 
heir,  the  abandonment  or  relinquishment  of  an  estate  on  account  of  mort- 
gages, will  revive  all  the  servitudes  active  and  passive. 

Art.  803. — Confusion  takes  place  by  the  simple  acceptance  of  an 
inheritance,  if  there  be  but  one  heir. 


115  OF  SERVITUDES.  115 

If  the  heir  who  has  thus  accepted  an  inheritance,  disposes  of  any 
estate  belonging  to  tlie  succession  which  is  subject  to  any  servitude  to- 
wards his  estate,  without  any  stipulation  for  the  preservation  of  his  right 
of  servitude,  the  estate  thus  alienated,  which  owed  the  servitude,  remains 
free  from  it,  in  consequence  of  the  confusion  which  had  taken  effect  while 
the  estate  remained  in  his  hands. 

Art.  804. — But  if  the  heir,  under  a  simple  acceptance,  sell  to  a  per- 
son the  whole  of  his  rights  in  the  succession  he  has  received,  the  sale 
prevents  the  confusion,  and  the  estate  belonging  to  the  succession  will 
continue  to  have  the  rights  of  servitude  previously  due  to  it,  or  be 
charged  with  the  servitudes  imposed  on  it,  in  the  same  manner  as  if  it 
had  not  passed  through  the  hands  of  the  heir ;  because,  in  this  case,  the 
purchaser  is  not  presumed  to  have  purchased  more  or  less  than  all  the 
ancestor  possessed. 

Art.  80j. — Confusion  docs  not  take  effect  if  the  heir  has  only  a 
temporary  possession  of  the  estate  subject  to  the  servitude,  or  enjoying 
it  for  the  purpose  of  delivering  it  to  another  person  to  whom  it  has  been 
bequeathed,  or  when  his  right  in  it  terminates  at  a  certain  fixed  time. 

Art.  806. — If  the  heir  has  accepted  the  succession  under  benefit  of 
inventory,  the  confusion  docs  not  take  effect ;  and  if  the  heir  is  obliged 
to  abandon  the  succession  at  the  instance  of  the  creditors,  the  servitudes 
resume  their  former  state. 

Art.  807. — The  acquets,  which  the  husband  and  wife  make  during 
the  marriage,  do  not  become  confused  with  the  private  property  of  each  ; 
and  if  these  acquets  are  sold  during  the  marriage,  the  servitudes,  active 
and  passive,  which  existed  previous  to  their  being  acquired  by  the  hus- 
band and  wife,  continue  to  exist,  without  any  stipulation  to  that  effect. 

Art.  808. — Except  in  the  cases  herein  mentioned,  and  similar  cases, 
services  extinguished  by  confusion  do  not  revive,  except  by  a  new  con- 
tract ;  with  the  exception  of  continuous  and  apparent  servitudes,  with 
respect  to  which  the  disposition  made  by  the  owner  of  both  estates  is 
equivalent  to  a  title. 

Art.  809. — The  renunciation  or  abandonment  of  the  land  extinguishes 
the  servitudes  charged  on  it,  of  whatever  nature  they  may  be,  because  the 
owner  of  the  estate  to  which  the  servitude  is  due,  is  bound  to  accept  the 
abandonment,  which  produces  in  his  hand  a  confusion  which  puts  an  end 
to  the  servitude. 

Art.  810. — It  is  not  necessary  to  produce  a  discharge  of  the  servi- 
tude, that  the  proprietor  of  the  estate  which  owes  it,  should  abandon  the 
whole  estate ;  it  sufiices,  if  he  abandon  the  part  on  which  the  servitude 
is  exercised. 

Art.  811. — If  a  proprietor  is  bound  to  support  a  building  or  beams 
of  his  neighbor  on  a  part  of  his  wall,  he  may  discharge  himself  from  this 
servitude  by  abandoning  the  owner  of  the  estate,  to  whom  the  servitude 
is  due,  that  part  of  his  wall  upon  which  this  servitude  is  exercised. 

Art.  812. — Servitudes  are  also  extinguished  by  the  renunciation  or 
voluntary  release  of  them  by  the  owner  of  the  estate  to  which  they  are 
due. 

This  renunciation  or  release  may  be  express  or  tacit. 

Art.  813. — The  express  release  must  be  made  in  writing,  and  is  con- 


116  OF  SERVITUDES. 

fined  to  what  is  clearly  expressed  iu  the  act  containing  it,  because  one  is 
not  easily  presumed  to  have  renounced  his  right. 

Besides,  the  owner  who  makes  the  release,  must  be  capable  of  dis- 
posing of  immovables  ;  this  release  of  a  servitude  being  a  real  alienation. 

Art.  814. — When  the  estate  to  which  the  servitude  is  due  belongs 
to  several  owners,  one  of  them  cannot  make  a  release  of  the  servitude  so 
as  to  discharge  the  estate  owing  the  servitude,  without  the  consent  of 
his  co-proprietors. 

But  the  release  which  he  makes  will  deprive  him  of  the  right  of 
personally  using  the  servitude. 

Art.  815. — The  release  of  the  servitude  is  tacit,  when  the  owner  of 
the  estate  to  which  it  is  due  peinnits  the  owner  of  the  estate  to  which  it 
is  due  permits  the  owner  of  the  estate  charged  with  the  servitude,  to 
build  on  it  such  works  as  presuppose  the  annihilation  of  the  right ;  be- 
cause they  prevent  the  exercise  of  it,  for  example,  if  he  should  permit 
the  field,  through  which  he  has  a  right  to  pass,  to  be  closed  by  a  wall. 

Art.  816. — In  order  that  the  tacit  release  of  the  servitude  be  in- 
ferred from  the  permission  which  the  owner  of  the  estate  to  which  it  is 
due  has  given  for  the  erection  of  works  which  prevent  the  exercise  of 
it,  it  is  necessary  : 

1.  That  the  permission  or  consent  for  the  erection  of  these  works 
should  be  given  expressly,  verbally,  or  in  writing.  From  the  mere  suf- 
ferance of  works  contrary  to  the  servitude,  the  release  cannot  be  pre- 
sumed, unless  it  has  continued  for  a  time  necessary  to  establish  prescrip- 
tion. 

2.  That  the  works  thus  constructed  be  of  a  permanent  and  solid 
kind,  such  as  an  edifice  or  walls,  and  that  they  present  an  absolute  ob- 
stacle to  every  kind  of  exercise  of  the  servitude. 

Art.  817. — Servitudes  are  also  extinguished  when  they  have  been 
established  for  a  certain  time  only,  or  under  a  condition  that  in  a  certain 
event  they  shall  cease ;  for  when  the  time  expires,  or  the  event  takes 
place,  the  servitude  becomes  extinguished  of  right. 

Art.  818. — Servitudes  are  in  fine  extinguished  by  the  destruction 
of  the  right  of  him  who  established  them ;  for  no  one  can  transmit  to 
another  more  right  than  he  has  himself;  from  thence  it  follows,  that  if 
any  one  establish  a  servitude  on  an  estate  iu  which  he  has  only  a  right 
suspended  by  a  condition,  or  defeasible  at  a  certain  time  or  in  certain 
cases,  or  subject  to  rescission,  the  servitude  becomes  extinguished  with 
his  right. 

It  is  the  same,  if  his  title  to  the  estate,  charged  with  the  servitude, 
is  annulled  by  reason  of  some  defect  inherent  to  the  act. 


117  OF  FIXING  THE  LIMITS  OF  LANDS.  II7 

TITLE  y. 

OF  FIXING  THE  LIMITS,  AND  SURVEYING  OF  LANDS. 

Art.  819. — When  two  estates  or  lands  contiguous,  in  cities  or  in  the 
country,  have  never  been  separated,  or  have  never  had  their  boundaries 
determined,  or  if  the  bounds,  which  have  been  formerly  fixed,  are  no 
longer  to  be  seen,  each  of  the  proprietors  of  the  contiguous  estates  has 
a  right  to  compel  the  other  to  fix  the  limits  of  their  respective  proper- 
tics. 

IT  L.  849. 

Art.  820. — The  action  of  boundary  is  derived  from  the  same  source 
as  the  action  of  partition.  No  one  being  bound  to  hold  an  estate  in 
common,  no  one  is  bound  to  leave  undecided  the  boundary  lines,  which 
separate  his  estate  from  that  of  his  neighbor. 

Art.  821. — The  action  of  boundary,  like  that  of  partition,  cannot  be 
prescribed  against ;  as  every  one  is  at  liberty,  at  all  times,  to  separate 
his  part  from  an  estate  in  common,  so  it  is  permitted  to  each  proprietor 
to  have  ascertained  the  limits  of  contiguous  estates,  to  have  them  fixed, 
as  each  has  enjoyed  his  estate  separately  without  having  acquired  any 
part  of  his  neighbor's  estate  by  prescription. 

Art.  822. — By  boundai'y  is  understood,  in  general,  every  separation, 
natural,  or  artificial,  which  marks  the  confines  or  line  of  division  of  two 
contiguous  estates.  Trees  or  hedges  may  be  planted,  ditches  may  be 
dug,  walls  or  inclosures  may  be  erected,  to  serve  as  boundaries. 

But  we  most  usually  understand  by  boundaries,  stones  or  pieces  of 
wood  inserted  in  the  earth  on  the  confines  of  two  estates. 

See  3  L.  90 ;  4  L.  534  ;  6  L.  543. 

Art.  823. — The  fixing  the  boundaries  takes  place  not  only  between 
two  neighboring  proprietors,  but  between  a  proprietor  and  several  others, 
when  they  have  contiguous  estates,  or  between  several  co-proprietors, 
when  a  partition  of  the  property  in  common  takes  place. 

Art.  824. — When  two  estates  are  separated  by  a  public  road  or  by 
a  watercourse,  which  serves  as  a  common  limit,  the  action  of  boundary 
cannot  be  sustained  in  relation  to  them,  unless  the  road  or  watercourse 
has  experienced  some  change  in  its  situation. 

Art.  825. — The  action  of  boundary  may  be  instituted,  not  only  by 
the  owner,  but  by  any  person  who  possesses  as  owner,  and  his  neighbor 
cannot  require  proof  of  his  right  of  property. 

Art.  826. — It  may  be  instituted  by  the  usufructuary,  but  the  deter- 
mination of  the  limits  will  be  only  provisional,  unless  the  owner  has 
been  made  a  party  to  the  suit ;  and  in  this  case  tlie  owner  may  require 
the  limits  to  be  fixed  anew  at  the  termination  of  the  usufruct. 

Art.  827. — The  lessee  lias  no  right  to  institute  the  action  of  bound- 
ary, but  he  may  resort  to  his  lessor,  and  oblige  the  latter  to  have  the 
limits  of  the  leased  estate  ascertained  and  fixed. 

4A.8a 


118  OF  FIXING  THE  LIMITS  OF  LANDS. 

Art.  828. — The  fixing  new  boundaries,  or  the  investigation  of  old 
ones,  may  be  made  extra-judicially  and  by  mutual  consent,  if  the  parties 
are  of  full  age. 

But  if  one  of  the  parties  be  a  minor,  or  interdicted,  it  must  be  done 
judicially. 

4E.360. 

Art.  829. — Whether  the  limits  be  fixed  judicially  cr  extrajudicially, 
it  must  be  done  by  a  sworn  surveyor  of  this  State,  who  shall  be  bound 
to  make  a  proces-vcrbal  of  his  work  in  the  presence  of  two  witnesses, 
called  for  the  purpose,  who  shall  sign  the  proccsverbal  with  him,  or 
mention  shall  be  made  therein  of  the  causes  which  prevented  them  from 
signing. 

4  R.  300  ;  4  ^V.  3.3 ;  See  3  R.  171. 

Art.  830. — Whenever  any  surveyor  is  called  on  to  fix  the  limits  be- 
tween adjacent  estates,  it  is  his  duty  to  notify  in  writing  the  proprietors 
interested  therein  to  be  present  at  the  Avork,  if  they  think  proper,  and 
to  inform  them  of  the  day  and  hour  when  he  will  proceed  to  fix  the 
limits ;  and  he  is  bound  to  make  mention  in  his  j^i'oci^s-vcrbal  of  the 
notice  he  may  thus  have  given,  of  the  names  of  the  parties  thus  notified, 
and  of  the  date  of  the  notice  ;  and  the  surveyor  shall  make  a  record  of 
his  proceeding,  and  of  the  plans  drawn  by  him,  in  order  that  copies  may 
be  delivered  to  the  parties  who  may  retjuire  them. 

See  3  R.  171. 

Art.  831. — If  the  parties  thus  notified,  their  representatives  or  at- 
torneys in  fact,  ajipear  at  the  fixing  of  the  limits,  the  surveyor  appointed 
for  tlie  purpose  is  bound  to  demand  of  tliein  thoir  respective  title  papers, 
which  they  are  bound  to  deliver  to  him,  in  good  faith,  if  they  have  them 
in  their  possession,  in  order  that  the  surveyor  may  determine,  by  exa- 
mining them,  in  what  place  to  fix  the  boundarie.-^. 

If  the  parties  thus  notified,  or  their  representatives  or  attorneys  in 
fact,  refuse  to  deliver  their  titles,  the  surveyor  shall  make  mention  of 
their  refusal  in  his  prods-vcrbdJ,  and  of  the  causes  they  have  alleged, 
if  they  have  assigned  any,  for  their  refusal. 

Pee  3  R.  171. 

Art.  832. — The  surveyor  shall  not  set  up  lii.s  boundaries,  until  he 
shall  have  finished  the  whole  work,  and  until  then  he  must  mark  his 
lines  of  separations  by  pickets  stuck  in  the  ground  for  that  purpose. 

Art.  833. — If  before  the  surveyor  has  finished  the  Avork,  or  set  up 
the  boundaries,  the  parties  interested,  or  any  of  them,  shall  make  op- 
position thereto,  the  surveyor  must  desist,  and  refer  the  parties  to  the 
court,  to  have  a  decision  on  their  respective  rights,  after  having  made 
mention  of  the  opposition  in  his  2^>'ocf's-verbaI,  and  the  reason  for  the 
same,  if  any  be  alleged. 

Art.  834. — It  is  forbidden  to  every  proprietor  of  lands  to  fix  the 
limits  between  him  and  his  adjoining  neighbors,  without  giving  them 
notice  to  be  present;  and  without  this  formality,  every  such  proceed- 
ing is  null,  and  will  produce  no  effect  against  his  neighbors,  who,  be- 
sides, have  their  action  for  damages  against  him,  if  they  have  suffered 
any  injury  thereby. 

Art.  835. — AVhen  the  limits  have  been  fixed  after  due  notice  to  the 
parties,  and  no  opposition  being  made,  the  parties  do  not  thereby  lose 


119  OF  FIXING  THE  LIMITS  OF  LANDS.  119 

tlieir  rio'lit  of  resorting  to  a  court  of  justice  to  rectify  the  operation  if 
they  think  it  for  their  interest ;  but  the  limits  will  remain  provisionally 
as  fixed,  until  otherwise  determined. 

Art.  836. — The  action  of  boundaries  must  be  brought  before  the 
court,  within  the  jurisdiction  of  which  the  land  is  situated,  without 
reeard  to  the  domicil  of  the  parties. 

Art.  837. — It  is  the  duty  of  the  judge  who  has  cognizance  of  suits 
on  the  subject  of  limits,  to  appoint  surveyors  to  inspect  tlie  premises  in 
question ;  the  court,  on  their  report,  ought  to  decide  according  to  the 
titles  of  the  parties,  and  the  plans  which  shall  be  presented  to  the 
court. 

4  A.  83,  882 ;  5  A.  122 ;  See  17  L.  349. 

Art.  838. — The  action  of  boundary,  instituted  against  several  co- 
proprietors  of  land  in  common,  continues,  notwithstanding  they  have 
divided  it  among  themselves,  or  alienated  it,  if  the  jmrtition  or  aliena- 
tion is  made  after  the  institution  of  the  suit. 

Art.  839. — In  matters  of  limits,  reference  must  be  had  to  ancient 
titles,  unless  it  be  proved  that  the  bounds  have  been  since  changed,  or 
that  the  land  has  been  increased  or  diminished  by  changes  caused  by 
successions,  by  the  will  of  the  owner,  or  by  other  events. 

2  A.  620;  See  6  L.  543. 

AjiT.  840. — When  an  owner  has  alienated  one  of  two  estates,  which 
belonged  to  him,  and  the  property  of  any  part  of  it  is  contested,  the 
limits  assigned  to  it  by  the  vendor  at  the  time  of  the  sale  must  be  con- 
sulted. The  limits  ancientl}^  subsisting  between  the  two  estates,  must 
not  be  regarded,  because  the  designation,  which  the  vendor  makes  of 
the  metes  and  bounds,  forms  new  limits  between  the  two  estates,  or 
between  the  parts  of  them  which  he  has  sold. 

See  6  L.  54.3. 

Art.  841. — The  limits  must  be  fixed  according  to  the  respective 
titles  of  the  parties  ;  in  absence  of  title,  on  both  sides,  possession  gov- 
erns. 

2  A.  626 ;  See  6  L.  54-3. 

Art.  842. — When  the  parties  claim  under  primitive  concessions  of 
their  lands,  or  prove  their  dates  and  contents,  in  case  their  concessions 
should  be  lost,  if  there  be  less  land  than  is  called  for  in  tlie  different 
titles,  he  who  has  the  oldest  concession,  takes  the  quantitj-  of  land 
therein  mentioned,  the  other  parties  having  a  right  only  to  the  rest. 

]}ut  this  article  must  be  understood  to  except  the  case  in  wliich  the 
person  having  a  title  of  later  date,  may  have  acquired  by  prescription 
the  quantity  of  land  mentioned  in  his  concession. 

Art.  843. — If  tlie  parties  claim  under  simple  acts  of  sale,  or  other 
acts  which  can  transfer  prrtperty,  without  being  supported  by  any  ante- 
rior concessions,  and  if  they,  or  the  person  from  whom  they  acquired 
their  estates,  have  acquired  them  from  one  common  proprietor,  the 
preference  shall  be  given  to  him  whose  title  is  of  the  most  ancient  date, 


120  OF  FIXING  THE  LIMITS  OF  LANDS. 

unless  an  adverse  possession,  for  a  time  sufficient  to  establisli  jirescrip- 
tion,  has  produced  a  diflPerence  in  the  situation  of  the  parties. 

6  N.  S.  700 ;  11  L.  1S2 ;  13  L.  334;  17  L.  .349 ;  See  2  E.  72 ;  3  R.  171. 

Art.  844. — If,  on  the  contrary,  the  parties,  or  those  from  whom 
they  have  acquired,  hold  titles  from  different  proprietors,  the  priority 
of  date  of  one  title  to  another,  unless  it  be  accompanied  by  prescription, 
gives  no  right  of  preference  to  the  person  liolding  it,  and  the  case  must 
be  determined  according  to  the  rules  prescribed  in  the  following  ar 
tides. 

Art.  845. — If  the  titles,  exhibited  by  one  of  the  parties,  fix  the  ex- 
tent of  land  which  he  ought  to  have,  and  those  exhibited  by  the  other 
make  no  mention  of  the  extent,  the  first  takes  the  quantity  of  land  men- 
tioned in  his  title,  and  the  second  only  takes  the  excess ;  unless  the  latter 
establish,  by  legal  proof,  or  by  the  possession  he  has  had,  the  quantity 
of  land  to  which  he  is  entitled. 

12  L.  539;  17  L.  349. 

Art.  846. — If  the  titles  exhibited  do  not  mention  the  quantity  of 
land  which  each  person  ought  to  have,  or  unless  it  can  be  established 
in  a  legal  manner,  the  limits  must  be  so  fixed  as  to  divide  the  land  equally 
between  them. 

13  L.  834. 

Art.  847. — If  the  titles  exhibited  call  for  a  greater  or  less  extent 
of  land  than  the  land,  which  is  to  be  bounded,  contains,  the  limits  must 
be  so  fixed  as  to  divide  proportionally  among  the  parties  interested  the 
profit  or  loss  resulting  from  this  state  of  things. 

It  is  understood  that  the  rules  prescribed  in  this  and  the  preceding 
articles,  only  take  effect  in  the  absence  of  possession  by  one  or  more  of 
the  parties,  sufficient  to  establish  prescription. 

17  L.  349 ;  See  7  L.  106. 

Art.  848. — Whether  the  titles,  exhibited  by  the  parties,  whose  lands 
are  to  be  limited,  consist  of  primitive  concessions  or  other  acts  by  which 
property  may  be  transferred,  if  it  be  proved  that  the  person,  whose  title 
is  of  the  latest  date,  or  those  under  whom  he  holds,  have  enjoyed  in 
good  and  bad  faith,  uninterrupted  possession,  during  thirty  years,  of 
any  quantity  of  land  beyond  that  mentioned  in  his  title,  he  will  be  per- 
mitted to  retain  it,  and  his  neighbor,  though  he  have  a  more  ancient 
title,  will  only  have  a  right  to  the  excess ;  for  if  one  cannot  prescribe 
against  his  own  title,  he  can  prescribe  beyond  his  title  or  for  moi'e  than 
it  calls  for,  provided  it  be  by  thirty  years'  possession. 

17  L.  349 ;  6  A^  382 ;  See  7  L.  lOG ;  12  L.  539. 

Art.  849. — If  the  boundaries  have  been  fixed  according  to  a  com- 
mon title,  or  according  to  different  titles,  and  the  surveyor  had  com- 
mitted an  error  in  his  measure,  it  can  always  be  rectified,  unless  the  part 
of  the  laud,  on  which  the  error  was  committed,  be  acquired  by  an  ad- 
verse possession  of  ten  years,  if  the  parties  are  present,  and  twenty 
years,  if  absent. 

17  L.  349;  2E.  72. 


121  OF  NEW  WORKS.  121 

Art.  850. — If  any  one  sells  or  alienates  a  piece  of  land,  from  one 
fixed  boundary  to  another  fixed  boundary,  the  purchaser  takes  all  the 
land  between  such  bounds,  although  it  give  him  a  greater  quantity  of 
land  than  is  called  for  in  his  title,  and  though  the  surplus  exceed  the 
twentieth  part  of  the  quantity  mentioned  in  his  title. 

13L.151;  2K.461;  12  M.  425;  8N.  S.  159;  2L.403;  See  6  L.  54^3;  11  L.  182;  ICL.  185;  Art.  24-1  post 

Art.  851. — If  any  one  removes  or  pulls  up  bounds,  which  have  been 
fixed,  either  provisionally  or  definitively,  without  being  authorized  by  a 
decree  of  the  court,  he  is  liable  to  an  action  of  damages  on  the  part  of 
the  owner  whose  bounds  he  has  removed  or  torn  up,  and  may  be  con- 
demned to  place  them  in  the  situation  they  were  before. 


TITLE  VI. 

OF  NEW  WORKS,  THE   ERECTION   OF  WHICH   CAN  BE   STOPPED  OR 

PREVENTED. 

Art.  852. — By  a  new  work  is  understood 'every  sort  of  edifice  or 
other  work,  which  is  newly  commenced  on  any  ground  whatever. 

_  When  the  ancient  form  of  a  work  is  changed,  either  by  an  addition 
being  made  to  it,  or  by  some  part  of  the  ancient  work  being  taken  away, 
it  is  styled  also  a  new  work. 

Art.  853. — Opposition  may  be  made  to  every  species  of  new  work, 
from  which  injury  is  apprehended,  whether  the  work  be  in  a  city  or  in 
the  country,  in  places  built  up  or  not  built  up,  public  or  private,  con- 
formably to  the  rules  hereinafter  prescribed. 

See  IT  L.  889. 

Art.  854. — Opposition  cannot  be  made  to  all  work  indiscriminately, 
but  only  to  those  which  come  under  the  denomination  of  new  works,  such 
as  the  constructing  of  new  buildings,  or  the  demolition  or  destruction 
of  old  works. 

See  17  L.  3S9. 

Art.  855. — Opposition  cannot  be  made  to  those  works,  which  any 
"one  makes  for  the  repairs  and  support  of  an  old  building,  if  its  ancient 
form  be  not  changed  thereby,  because,  unless  this  be  done,  it  is  not  jn-o- 
perly  a  new  work. 

Art.  856. — Opposition  cannot  be  made  to  the  works,  which  any  one 
makes  for  the  repairs  or  cleaning  of  his  canals,  spouts,  sewers  or  aque- 
ducts, whatever  inconvenience  or  detriment  may  result  therefrom,  be- 
cause it  is  for  the  public  interest  or  safety  that  these  things  should  be 
repaired  and  kept  clean. 

Art.  857. — Works  which  have  been  formerly  built  on  public  places, 
or  in  the  beds  of  rivers  or  navigable  streams,  or  on  their  banks,  and 
which  obstruct  and  embarrass  the  use  of  these  places,  rivers,  streams,  or 
iheir  banks,  may  be  destroyed  at  the  expense  of  those  who  claim  them. 


1  22  OF  NEW  WORKS. 

at  the  instance  of  the  corporation  of  the  place,  or  of  any  individual  of 
full  age  residing  in  the  place  where  they  are  situated. 

And  the  owner  of  these  works  cannot  prevent  their  being  destroyed 
under  pretext  of  any  prescription  or  possession,  even  immemorial,  which 
he  may  have  had  of  it,  if  it  be  proved  that  at  the  time  these  works  were 
constructed,  the  soil,  on  which  they  are  built,  was  public,  and  has  not 
ceased  to  be  so  since. 

9  K.  36T. 

Art.  858. — If  the  works,  formerly  constructed  on  the  public  soil, 
consist  of  houses  or  other  buildings,  which  cannot  be  destroyed,  without 
causing  signal  damage  to  the  owner  of  them,  and  if  these  houses  or  other 
buildings  merely  encroach  upon  the  public  way,  without  preventing  its 
use,  they  shall  be  permitted  to  remain ;  but  the  owner  shall  be  bound, 
when  he  rebuilds  them,  to  relinquish  that  part  of  the  soil  or  of  the  pub- 
lic way,  upon  which  they  formerly  stood. 

4  A.  73. 

Art.  859. — The  corporations  of  cities,  towns  and  other  places,  may 
construct  on  the  public  places,  in  the  beds  of  rivers  and  on  their  banks, 
all  buildings  and  other  works  which  may  be  necessary  for  public  utility, 
for  the  mooring  of  vessels  and  the  discharge  of  their  cargoes,  within  the 
extent  of  the  respective  limits. 

2  A.  7T0 ';  4  A.  73 ;  See  IS  L.  278. 

Art.  860. — If  any  one  commence  on  his  own  land  a  building  or  other 
new  work,  which  may  be  of  detriment  to  his  neighbor  or  any  other  indi- 
vidual, the  latter  may,  in  the  presence  of  witnesses,  forbid  him  to  con- 
tinue the  work. 

Art.  861. — If  the  person,  thus  forbidden  to  continue  his  works,  will 
not  suspend  them,  the  person  making  the  opposition,  may  apply  to  the 
judge  in  order  to  have  them  destroyed  at  the  expense  of  the  person  ma- 
king them,  on  alleging  the  injury  and  detriment  the  works  may  cause  to 
him. 

Art.  862. — The  plaintiif,  who  sues  in  opposition,  may  obtain  from 
the  judge  a  mandate  commanding  the  defendant  to  suspend  his  works 
until  further  order,  if  he  affirm  under  oath,  at  the  foot  of  his  petition, 
that  he  has  forbidden  the  defendant  to  continue  his  works,  and  that  the 
construction  may  cause  him  injury  or  damage,  and  if  he  give  good  and 
sufficient  security  to  the  defendant,  in  such  sum  as  shall  be  fixed  by  the 
judge,  to  answer  for  the  damage  caused  to  the  defendant,  in  case  the 
opposition  should  not  be  well  founded. 

Art.  863. — Though  the  judge  may  have  commanded  the  defendant 
to  suspend  his  works,  he  may,  in  the  course  of  the  suit,  authorize  him 
to  continue  them,  if  he  think  their  continuance  will  not  cause  an  irre- 
parable injury  to  the  plaintiflF,  but  the  defendant  will  be  bound  to  give 
good  and  sufficient  security,  in  such  sum  as  shall  be  fixed  by  the  judge, 
to  pay  any  damages,  which  may  be  caused  to  the  plaintiff"  by  their  being 
continued,  and  that  he  will  place  every  thing  in  its  former  situation,  if 
he  should  be  finally  condemned  to  destroy  his  works. 

Art.  864. — If,  on  the  trial  of  the  case,  it  be  determined  that  the 
new  works  can  cause  injury  or  detriment  to  the  person  who  complains 
of  them,  ani  who  has  made  opposition  to  their  erection,  the  judge  shall 


123  OF  NEW  WORKS.  123 

order  them  to  be  destroyed  at  the  expense  of  him  who  has  caused  them 
to  be  constructed,  how  far  soever  they  may  be  advanced,  even  if  they 
should  be  finished,  under  the  authority  given  and  the  security  furnished 
according  to  the  terms  of  the  preceding  article,  unless  the  works  can  be 
so  changed  as  to  cause  no  detriment  to  the  complainant. 

Art.  865. — If,  after  the  commencement  of  a  suit  for  the  destruction 
of  new  works,  the  defendant  shall  sell  the  land  upon  which  these  works 
stand,  the  judgment  which  orders  the  destruction  of  them,  shall  be  exe- 
cuted against  the  purchaser,  though  he  may  have  been  ignorant  of  the 
prohibition  made  to  his  vendor  to  discontinue  them,  saving  always  his 
recourse  for  indemnity  against  his  vendor. 


BOOK  III, 

OF  THE  DIFFERENT  MODES  OF  ACQUIRING  TH: 
PROPERTY  OF  THINGS. 


PRELIMINARY   TITLE. 

GENERAL  DISPOSITIONS, 

Art.  866. — The  property  of  things  or  goods  is  acquired  by  inherit- 
ance either  legal  or  testamentary,  by  the  eflfeet  of  obligations,  and  by 
the  operation  of  law. 

Seo  6  L.  231. 


TITLE  L 

OF    SUCCESSIONS. 
CHAPTER  I. 

OF  THE  DIFFERENT  SORTS  OF  SUCCESSIONS  AND  HEIRS. 

Art.  867.— Succession  is  the  transmission  of  the  rights  and  obliga- 
tions of  the  deceased  to  the  heirs. 

12  E.  105;  2  A.  405. 

Art.  868. — Succession  signifies  also  the  estate,  rights  and  charges 
which  a  person  leaves  after  his  death,  whether  the  property  exceeds  the 
charges,  or  the  charges  exceed  the  property,  or  whether  he  has  only  left 
charges  without  any  property. 

12  E.  105 ;  1  A.  85. 

Art.  869. — The  succession  not  only  includes  the  rights  and  obliga- 
tions of  the  deceased,  as  they  exist  at  the  time  of  his  death,  but  all  that 
has  accrued  thereto  since  the  opening  of  the  succession,  as  also  the  new 
rsharges  to  which  it  becomes  subject. 

12  E.  105;  See  11  L.  1 ;  13  Peters,  409. 

Art.  870. — Finally,  succession  signifies  also  that  right  by  which 


125  '  OF  SUCCESSIONS.  125 

the  heir  can  take  possession  of  the  estate  of  the  deceased,  such  as  it 
may  be. 

12  R. 105 

Art.  871. — There  are  three  sorts  of  successions,  to  wit: 

Testamentary  successions ; 

Legal  successions ; 

And,  irregular  successions. 

2  A.  98. 

Art.  872. — Testamentary  succession  is  that  which  results  from  the 
institution  of  heir,  contained  in  a  testament  executed  in  the  form  pre- 
scribed by  law.  This  sort  of  succession  is  treated  of  under  the  title  of 
donations  inter  vivos  and  mortis  causa. 

Art.  873. — Legal  succession  is  that  which  the  law  has  established 
in  favor  of  the  nearest  relation  of  the  deceased. 

Art.  874. — Irregular  succession  is  that  which  is  established  by  law 
in  favor  of  certain  persons,  or  of  the  State  in  default  of  heirs  cither 
legal  or  instituted  by  testament. 

These  two  last  sorts  of  successions  are  the  objects  of  the  present 
title. 

Art.  875. — There  are  three  kinds  of  heirs  which  correspond  with 
the  three  species  of  successions  described  in  the  preceding  articles,  to 
wit: 

Testamentary  or  instituted  heirs ; 

Legal  heirs,  or  heirs  of  the  blood ; 

And,  irregular  heirs. 

Art.  876. — lie  who  is  the  nearest  relation  to  the  deceased,  capable 
of  inheriting,  is  presumed  to  be  heir,  and  is  called  presumptive  heir. 

This  quality  is  given  to  him  before  the  decease  of  the  person  from 
whom  he  is  to  inherit,  as  well  as  after  the  opening  of  the  succession, 
until  he  has  accepted  or  renounced  it. 

Art.  877. — Heirs  are  divided  into  two  classes,  according  to  the 
manner  in  which  they  accept  successions  left  to  them,  to  wit :  uncondi- 
tional and  beneficiary  heirs. 

Art.  878. — Unconditional  heirs  are  those  who  inherit  without  any 
reservation,  or  without  making  an  inventory,  whether  their  acceptance 
be  express  or  tacit. 

Art.  879. — Beneficiary  heirs  are  those  who  have  accepted  the  suc- 
cession under  the  benefit  of  an  inventory  regularly  made. 

Art.  880. — The  person  who  has  become  the  universal  successor  of 
the  deceased,  who  is  possessed  of  all  his  property  and  rights,  and  who 
is  subject  to  the  charges  for  which  the  estate  is  responsible,  is  called 
the  heir,  no  matter  whether  he  be  such  by  law,  by  the  institution  of  a 
testament,  or  otherwise. 

Art.  881. — The  law  does  not  take  into  consideration  the  origin  nor 
the  nature  of  the  property  in  order  to  regulate  the  succession. 

1  N.  8.665;  17  L.  812. 


126  OF  SUCCESSIONS. 

CHAPTER  II. 

OF  LEGAL  SUCCESSIONS. 

Section  I. —  General  Rules- 

Art.  882. — If  tliere  is  no  testament  or  institution  of  lieir,  or  if  the 
institution  is  null  or  without  effect,  the  succession  is  then  open  in  favor 
of  the  legitimate  heirs,  by  the  mere  operation  of  the  law. 

12  E.  5S4. 

Art.  883. — There  are  three  classes  of  legal  heirs,  to  wit : 
The  children  and  other  lawful  descendants ;  .  , 

The  fathers  and  mothers  and  other  lawful  ascendants ; 
And  the  collateral  kindred. 

2  A.  98. 

Art.  884. — The  nearest  relation  in  the  descending,  ascending  or 
collateral  line,  conformable  to  the  rules  hereafter  established,  is  called 
to  the  legal  succession. 
• 

Art.  885. — The  propinquity  of  consanguinity  is  established  by  the 
number  of  generations,  and  each  generation  is  called  a  degree. 

6  A.  232. 

Art.  886. — The' series  of  degrees  forms  the  line;  the  series  of  de- 
grees between  persons  who  descend  from  one  another,  is  called  direct 
or  lineal  consanguinity,  and  the  series  of  degrees  between  persons  who 
descend  from  one  another,  but  spring  from  a  common  ancestor,  is  called 
the  collateral  line  or  collateral  consanguinity. 

The  direct  line  is  divided  into  a  direct  line  descending  and  direct 
line  ascending :  The  first  is  that  which  connects  the  ancestor  with  those 
who  descend  from  him ;  the  second  is  that  which  connects  a  person  with 
those  from  whom  he  descends. 

See  6  L.  231. 

Art.  887. — In  the  direct  line  there  are  as  many  degrees  as  there 
are  generations.  Thus  the  son  is  with  regard  to  the  father,  in  the  first 
degree,  the  grandson  in  the  second,  and  vice  versa  with  regard  to  the 
father  and  grandfather  towards  the  sons  and  grandsons. 

See  2  A.  405. 

Art.  888. — In  the  collateral  line  the  degrees  are  counted  by  the 
generations  from  one  of  the  relations  up  to  the  common  ancestor  exclu- 
sively, and  from  the  common  ancestor  to  the  other  relations. 

Thus  brothers  are  related  in  the  second  degree ;  uncle  and  nephew, 
in  the  third  degree ;  cousins  german  in  the  fourth,  and  so  on. 

Art.  889. — In  matter  of  legal  successions,  no  difference  of  sex,  and 
no  right  of  primogeniture  are  known ;  but  they  are  regulated  by  the 
most  perfect  equality. 

Section  II. — Of  Representation. 

Art.  890. — Representation  is  a  fiction  of  the  law,  the  effect  of 
which  is  to  put  the  representative  in  the  place,  degree,  and  rights  of  the 
person  represented. 

3  A,  1B6. 


127  OP  SUCCESSIONS.  127 

Art.  891. — Representation  takes  ^ilsiCG  ad  inJlnituM  in  the  direct 
descending  line. 

It  is  admitted  in  all  cases,  whether  the  children  of  the  deceased 
concur  with  the  descendants  of  a  predeceased  child,  or  whether,  all  the 
children  having  died  before  him,  the  descendants  of  the  children  be 
between  them  in  equal  or  inequal  degrees. 

Art.  892. — Representation  does  not  take  place  in  favor  of  the  as- 
cendants, the  nearest  relation  in  degree  alwaj-s  excluding  those  of  a 
degree  superior  or  more  remote. 

Art.  893- — In  the  collateral  line,  representation  is  admitted  in 
favor  of  the  children  and  descendants  of  the  brothers  and  sisters  of  the 
deceased,  whether  they  come  to  the  succession  in  concurrence  with  the 
uncles  and  aunts,  or  whether,  the  brothers  and  sisters  of  the  deceased 
having  died,  the  succession  devolves  on  their  descendants  in  equal  or 
unequal  degrees. 

See  7  N.  S.  335. 

Art.  894. — In  all  cases  in  which  representation  is  admitted,  the 
partition  is  made  by  roots ;  if  one  root  has  produced  several  branches, 
the  sub-division  is  also  made  by  roots  in  each  branch,  and  the  members 
of  the  branch  take  between  them  by  heads. 

Art.  895. — Persons  deceased  only  can  be  represented  ;i  persons  alive 
cannot. 

Art.  896. — One  who  has  renounped  the  succession  of  another,  may 
still  enjoy  the  right  of  representation  \jith  respect  to  that  other. 

Thus  it  is  necessary  that  the  children  who  succeed  by  representation, 
should  have  been  heirs  of  their  father  or  mother.  Although  they  should 
have  renounced  their  succession,  they  are  nevertheless  competent  to 
represent  them  in  the  succession  of  their  grandfather  or  other  ascend- 
ants. 

The  word  "not'"  should  be  Inseo'ted  between  the  words  "«s"  and  "necessary"  in  the  second  para- 
graph of  this  article.    See  Frcncli  text. 

Art.  897. — When  a  person  has  been  disinherited  by  his  father  or 
mother,  or  excluded  from  his  succession  for  unworthiness,  his  children 
cannot  represent  him  in  the  succession  of  their  grandfather  or  other 
ascendants,  if  he  is  alive  at  the  time  of  the  opening  of  the  succession,  but 
they  can  represent  him  if  he  died  before. 

Section  III. — Of  Successions  falling  to  Descendants. 

•  Art.  898. — Legitimate  children  or  their  descendants  inherit  from 
their  father  and  mother,  grandfathers  or  other  ascendants,  without  dis- 
tinction of  sex  or  primogeniture,  and  though  they  may  be  born  from  dif- 
ferent marriages. 

They  inherit  in  equal  portions  and  by  heads,  when  they  are  in  the 
same  degree,  and  inherit  by  their  own  right ;  they  inherit  by  roots,  when 
all  or  part  of  them  inherit  by  representation. 

Stat.  25th  March,  1844,  p.  99.—^  1.  In  all  cases  hereafter,  when 
cither  husband  or  wife  shall  die,  leaving  no  ascendants  or  descend- 
ants, and  without  having  disposed  by  last  will  and  testament,  of  his  or 
her  share  in  the  community  property,  such  sliaro  shall  be  held  by  the  sur- 
vivor in  usufruct  duriug  his  or  her  natural  life. 


128  OF  SUCCESSIONS. 

^  2.  In  all  cases  when  the  predeceased  husband  or  wife  shall 
have  left  issue  of  the  marriage  with  the  survivor,  and  shall  not  have  dis 
posed  by  last  will  and  testament,  of  his  or  her  share  in  the  community 
property,  the  survivor  shall  hold  in  usi(fnict,  during  his  or  her  natural 
life,  so  much  of  the  share  of  the  deceased  in  said  community  property 
as  may  be  inherited  by  such  issue:  Provided^  however,  that  such 
iisufnict  shall  cease  whenever  the  survivor  shall  enter  into  a  second 
marriage.  « 

3A.  4S9;  4A.  3S9. 

Section  IV. —  Of  Successions  falling  to  Ascendants. 

Art.  899. — If  any  one  dies  leaving  no  descendants,  but  a  father  and 
mother,  and  brothers  and  sisters,  or  descendants  of  these  last,  the  suc- 
cession is  divided  into  two  equal  portions,  one  of  which  goes  to  the  father 
and  mother,  who  divide  it  equally  between  them,  the  other  to  the  broth- 
ers and  sisters  of  the  deceased,  or  their  descendants,  as  is  prescribed  in 
the  following  section : 

7  N.  S.  414;  See  T  N.  S.  665. 

Art.  000. — If  the  father  or  mother  of  the  person  who  has  died  with- 
out issue,  has  died  before  him,  the  portion  which  would  have  been  inhe- 
rited by  such  deceased  parent,  according  to  the  terms  of  the  preceding 
article,  will  go  to  the  brothers  and  sisters  of  the  deceased,  or  to  their 
descendants,  in  the  manner  directed  by  the  following  section. 

7N.  S.414. 

Art.  901. — If  the  deceased  has  left  neither  descendants  nor  brother 
nor  sister,  nor  descendants  from  them,  nor  father  nor  mother,  but  only 
other  ascendants,  these  ascendants  inherit  the  succession  to  the  exclusion 
of  all  the  collaterals,  in  conformity  with  the  dispositions  of  the  articles 
which  follow. 

Art.  902. — If  there  are  ascendants  in  the  paternal  and  maternal 
lines  in  the  same  degree,  the  estate  is  divided  into  two  equal  shares,  one 
of  which  goes  to  the  ascendants  on  the  paternal,  and  the  other  to  the 
ascendants  on  the  maternal  side,  whether  the  number  of  ascendants,  on 
each  side,  be  equal  or  not.  In  this  case,  the  ascendants,  in  each  line, 
inherit  by  heads. 

Art.  903. — But  if  there  is  in  the  nearest  degree  but  one  ascendant 
in  the  two  lines,  such  ascendant  excludes  all  other  ascendants  of  a  more 
remote  degree,  and  alone  takes  the  succession. 

Art.  904. — Ascendants  to  the  exclusion  of  all  others,  inherit  tl^e 
real  estate  and  slaves  given  by  them  to  their  children  or  their  descend- 
ants of  a  more  remote  degree,  when  these  objects  arc  found  in  the  suc- 
cession. 

If  these  objects  have  been  alienated,  and  the  price  is  yet  due  in  whole 
or  in  part,  the  ascendants  have  the  right  to  receive  the  price.  They 
also  succeed  to  the  right  of  reversion  on  the  happening  of  any  event 
which  the  child  or  descendants  may  have  inserted,  as  a  condition  in  their 
favor,  for  disposing  of  those  objects. 

1TL.40T;19L.  265;  3  L.  19. 

The  words  "  loho  die  icifhout  posterity^''  should  bo  inserted  after  the  word  "  deseendant%"  iu 
the  1st  paragraph  of  this  Article.  They  are  to  be  found  in  the  original  in  the  office  of  the  Secretary 
of  State,  and  were  omitted  by  mistake  by  the  publisher  of  the  Code. 


129  OF  SUCCESSIONS.  129 

Art.  905. — Ascendants  have  also  tlie  right  to  take  from  the  succes- 
sion of  their  child  or  descendant  who  die  without  issue,  the  dowry  they 
may  have  settled  in  money  upon  him. 

Sec  17  L.  40T. 

Art.  906. — Ascendants  inheriting  the  things  mentioned  in  the  pre- 
ceding articles,  which  they  have  given  their  children  or  descendants  who 
die  without  issue,  take  them  subject  to  all  the  mortgages  which  the  donee 
may  have  imposed  on  them  during  his  life. 

Also  ascendants  exercising  the  right  of  reversion  are  bound  to  con- 
tribute to  the  payment  of  the  debts  of  the  succession,  in  proportion  to 
the  value  of  the  objects  given. 

Sec  IT  L.  407. 


Section  V. — Of  the  Succession  of  Collaterals. 

Art.  907. — If  a  person  dies,  leaving  no  descendants,  and  his  father 
and  mother  survive,  his  brothers  and  sisters,  or  their  descendants,  only 
inherit  half  of  his  succession. 

If  the  father  or  the  mother  only  survive,  the  brothers  and  sisters,  or 
their  descendants,  inherit  three-fourths  of  his  succession. 

Art.  908. — If  a  person  dies,  leaving  no  descendants  nor  father  nor 
mother,  his  brothers  and  sisters,  or  their  descendants,  inherit  the  whole 
succession  to  the  exclusion  of  the  ascendants  and  other  collaterals. 

See  amendment  to  Art.  898;  15  L.  527,  562. 

Art.  909. — The  partition  of  the  half  the  three-fourths  or  the  whole 
of  a  succession  fiilling  to  brothers  and  sisters,  as  mentioned  in  the  two 
preceding  articles,  is  made  in  equal  portions,  if  they  are  all  of  the  same 
marriage  :  if  they  are  of  different  marriages,  the  succession  is  equally  di- 
vided between  the  paternal  and  maternal  lines  of  the  deceased  ;  the  ger 
aian  brothers  and  sisters  take  a  part  in  the  two  lines,  the  paternal  and 
maternal  brothers  and  sisters,  each  in  their  respective  lines  only  ;  if  there 
arc  brothers  and  sisters  on  one  side  only,  they  inherit  the  whole  succes- 
sion to  the  exclusion  of  all  other  relations  of  the  other  line. 

In  all  these  cases,  the  brothers  and  sisters  of  the  deceased,  or  their 
descendants,  inherit  in  their  own  right  or  by  representation,  as  is  regu- 
lated in  the  section  which  treats  of  representation. 

See  14  L.  22. 

Art.  910. — When  the  deceaged  has  died  without  descendants, 
leaving  neither  brothers  nor  sisters,  nor  descendants  from  them,  nor 
father  nor  mother  nor  ascendants  in  paternal  or  maternal  lines,  his  suc- 
cession passes  to  his  collateral  relations. 

Among  the  collateral  relations,  he  who  is  the  nearest  in  degree, 
excludes  all  the  others,  and  if  there  are  several  in  the  f^nme  degree,  they 
partake  equally  and  by  heads,  according  to  their  number. 

6  A.  232. 


130  OF  SUCCESSIONS. 

CHAPTER  III. 

OF    IRREGULAR    SUCCESSIONS. 

Art.  911. — When  the  deceased  has  left  neither  lawful  descendants, 
nor  lawful  ascendants,  nor  collateral  relations,  the  law  calls  to  his 
inheritance  either  the  surviving  husband  or  wife,  or  his  or  her  natural 
children,  or  the  State  in  the  manner  and  order  hereafter  directed. 

12  E.  584;  2  A.  98,  268;  See  5  E.  9. 

Art.  912. — Natural  children  are  called  to  the  legal  succession  of 
their  natural  mother,  when  they  have  been  duly  acknowledged  by  her, 
if  she  has  left  no  lawful  children  or  descendants,  to  the  exclusion  of  her 
father  and  mother  and  other  ascendants,  or  collaterals  of  lawful  kindred. 

In  case  the  natural  mother  has  lawful  children  or  descendants,  the 
rights  of  the  natural  children  are  reduced  to  a  moderate  alimony,  which 
is  determined  by  the  rules  established  in  the  title  oi  father  and  child. 

Art.  913. — Natural  children  are  called  to  the  inheritance  of  their 
natural  father,  who  has  duly  acknowledged  them,  when  he  has  left  no 
descendants  nor  ascendants,  nor  collateral  relations,  nor  surviving  wife, 
and  to  the  exclusion  only  of  the  State. 

In  all  other  cases,  they  can  only  bring  an  action  against  their 
natural  father  or  his  heirs  for  alimony,  the  amount  of  which  shall  be 
determined  as  is  directed  in  the  title  oi  father  and  child. 

3  E.  441  ;  2  A.  98 ;  6  A.  156, 160 ;  See  6  L.  642. 

Art.  914. — Bastard,  adulterous  or  incestuous  children  shall  not 
enjoy  the  right  of  inheriting  the  estates  of  their  natural  father  or 
mother,  in  any  of  the  cases  above  mentioned,  the  law  allowing  them 
nothing  more  than  a  mere  alimony. 

3  E.  441 ;  6  A.  160. 

Art.  915. — The  law  does  not  grant  any  right  of  inheritance  to 
natural  children  to  the  estate  of  the  legitimate  relations  of  their  father 
or  mother. 

Art.  916. — The  estate  of  a  natural  child  deceased  without  poste- 
rity, belongs  to  the  father  or  mother  who  has  acknowledged  him,  or  in 
equal  portions  to  the  father  and  mother,  when  he  has  been  acknowledged 
by  both  of  them. 

C  L.  5C1 ;  6  A.  156 ;  See  4  M.  265 ;  11  L.  128  ;  ante,  Art.  221. 

Art.  917. — If  the  father  and  mother  of  the  natural  child  died 
before  him,  the  estate  of  such  natural  child  shall  pass  to  his  natural 
brothers  and  sisters,  or  to  their  descendants. 

6  L.  645,  561 ;  5  E.  9;  2  A.  98 ;  See  12  E.  584. 

Art.  918. — If  a  married  man  has  left  no  lawful  descendants  nor 
ascendants,  nor  any  collateral  relations,  but  a  surviving  wife  not  sepa- 
rated from  bed  and  board  from  him,  the  wife  shall  inherit  from  him 
to  the  exclusion  of  any  natural  child  or  children  duly  acknowledged. 

If,  on  the  contrary,  it  is  the  wife  who  died  without  leaving  any  law- 
ful descendants,  ascendants  or  collateral  relations,  her  surviving  hus- 
band not  separated  from  bed  and  board  from  her,  shall  not  inherit  from 
her,  except  in  case  she  should  leave  no  natural  child  or  children  by  her 
duly  acknowledged. 

6  L.  642 ;  1  A.  181 ;  2  A.  98,  268. 

Art.    919. — Children   called   to    the  sviccession  of   their   natural 


131  OF  SUCCESSIONS. 


131 


father  or  mother,  in  the  case  mentioned  in  the  preceding  articles,  are 
permitted  to  take  possession  of  the  succession,  which  has  fallen  to  them, 
only  by  the  order  of  the  judge  of  the  parish  in  which  the  succession  is 
opened. 

6  L.  560. 

Art.  920. — If  the  succession  be  that  of  the  natural  mother  deceased 
without  legitimate  children,  the  putting  into  possession  of  the  natural 
children  shall  not  be  pronounced  without  calling  the  relations  of  the 
deceased,  who  would  have  inherited  in  the  default  of  the  natural  chil- 
dren if  they  are  present  or  represented  in  the  State,  or  without  appoint- 
ing a  person  to  defend  them,  if  they  are  absent. 

Art.  921.— If  the  succession  be  that  of  the  natural  father,  the 
natural  children  by  him  acknowledged  cannot  be  put  into  possession 
of  the  succession  which  they  claim,  until  a  faithful  inventory  has  been 
made  of  the  same  by  a  notary  appointed  for  that  purpose  by  the  judge, 
in  the  presence  of  a  person  appointed  to  defend  the  interest  of  The 
absent  heirs  of  the  deceased,  and  on  giving  good  and  sufficient  security 
as  is  prescribed  in  the  following  article.  ' 

See  14  L.  542. 

Art.  922. — The  security  to  be  furnished  by  natural  children  put  into 
possession  of  the  effects  of  the  .succession  of  their  father,  shall  be  two- 
thirds  of  the  amount  of  the  inventory  made  thereof,  and  this  security 
shall  be  given  to  insure  the  restitution  of  such  portion  of  these  effects, 
which  they  may  be  adjudged  to  restore,  in  case  the  legitimate  heirs  of' 
the  father  should  present  themselves  within  three  years  from  the  put- 
ting into  possession,  after  which  time  this  security  shall  be  discharged. 

Art.  923. — In  defect  of  lawful  relations,  or  of  a  surviving  husband 
or  wife,  or  acknowledged  natural  children,  tlie  succession  belongs  to  the 
State. 

6  L.  645 ;  5  R.  9 ;  12  R.  584;  2  A.  9S. 

Art.  924. — The  surviving  husband  or  wife  called  to  the  succession 
of  the  other  who  is  deceased,  must  cause  the  seals  to  be  fixed  on  the 
effects  thereof,  and  be  authorized  to  take  possession  of  the  same  by  the 
judge  of  the  place  in  which  the  succession  is  opened,  after  having  caused 
a  true  and  faithful  inventory  to  be  made  by  a  notary  duly  authorized  to 
that_  effect  by  the  judge,  in  the  presence  of  a  person  appointed  to  defend 
the  interest  of  the  absent  heirs  of  tlie  deceased,  in  case  there  are  any, 
and  after  having  given  good  and  sufficient  security,  as  prescribed  in  the 
following  article. 

1  A.  181. 

Art.  925. — The  security  to  be  given  by  the  surviving  husband  or 
wife  who  shall  demand  to  be  put  into  possession  of  the  effects  of  the 
deceased  husband  or  wife,  is  to  be  of  the  estimated  value  of  these 
effects,  to  the  end  of  securing  the  restitution  of  the  estate,  in  case  any 
heir  should  come  forward  within  the  space  of  three  years,  after  his  or 
her  having  been  put  in  possession,  which  term  being  expired,  the  secu- 
rity shall  remain  discharged  from  his  obligation. 

Art.  92G. — During  the  three  years  that  the  security  furnished  by 
the  surviving  husband  or  wife,  or  natural  children  put  into  possession 
of  the  succession  of  their  father,  continues,  they  cannot  in  any  manner 
alienate  the  real  estate  by  them  thus  possessed,  nor  sell  the  slaves,  uu- 


132  OF  SUCCESSIONS. 

less  it  be  under  the  authority  of  the   court,  at  public   auction,  and  in 
cases  which  their  alienation  is  deemed  necessary. 

Art.  927 — The  surviving  husband  or  wife  and  natural  children, 
who  shall  fail  to  fulfil  any  of  the  formalities  or  obligation  prescribed  in 
the  jireceding  articles,  shall  be  liable  to  damages  towards  the  heir,  if 
any  should  be  incurred. 


CHAPTER  IV. 

IN    WHAT    MANNER    SUCCESSIONS    ARE    OPENED. 

Art.  928. — The  succession,  either  testamentary  or  legal,  or  irregu- 
lar, becomes  open  by  death  or  by  presumption  of  death  caused  by  long 
absence,  in  the  cases  established  by  law. 

6  N.  S.  196. 

Art.  929. — The  place  of  the  opening  of  successions  is  fixed  as  fol- 
lows. 

In  the  parish  where  the  deceased  resided,  if  he  had  a  fixed  domicil 
or  residence  in  this  State. 

In  the  parish  where  the  deceased  owned  real  estate,  if  he  had  neither 
domicil  nor  residence  in  this  State,  or  in  the  parish  in  which  it  appears 
by  the  inventory  his  principal  effects  are,  if  he  have  effects  in  different 
parishes. 

In  the  parish  in  which  the  deceased  has  died,  if  he  had  no  fixed  resi- 
dence, nor  any  immovable  effects  within  this  State,  at  the  time  of  his 
death. 

13  L.  3T5 ;  11  E.  6T ;  2  L.  2T0 ;  See  16  L.  11 ;  7  N.  S.  51. 

Art.  930. — If  several  persons  respectively  entitled  to  inherit  from 
one  another,  happen  to  perish  in  the  same  event,  such  as  a  wreck,  a 
battle,  or  a  conflagration,  without  any  possibility  of  ascertaining  who 
died  first,  the  presumption  of  survivorship  is  determined  by  the  circum- 
stances of  the  fact. 

Art.  931. — In  defect  of  circumstances  of  the  fact,  the  determination 
must  be  guided  by  the  probabilities  resulting  from  the  strength,  age,  and 
difference  of  sex,  according  to  the  following  rules. 

Art.  932. — If  those  who  have  perished  together  were  under  the  age 
of  fifteen  years,  the  eldest  shall  be  presumed  to  have  survived. 

If  both  were  above  the  age  of  sixty  years,  the  youngest  shall  be  pre- 
sumed to  have  survived. 

If  some  were  under  fifteen  years,  and  some  above  sixty,  the  first  shall 
be  presumed  to  have  survived. 

Art.  933. — If  those  who  have  perished  together,  were  above  the  age 
of  fifteen  years  and  under  sixty,  the  male  must  be  presumed  to  have  sur- 
vived, where  there  was  an  equality  of  age,  or  a  difference  of  less  tlian 
one  year. 

If  they  were  of  the  same  sex,  the  presumption  of  survivorship,  by 
which  the  succession  becomes  open  in  the  order  of  nature,  must  be  ad- 
mitted, thus  the  younger  must  be  presumed  to  have  survived  the  elder. 

Art.  934. — A  succession  is  acquired  by  the  lawful  heir,  who  is  called 


133  OF  SUCCESSIONS.  133 

by  law  to  tlie  inheritance,  immediately  after  the  death  of  the  deceased 
person  to  whom  he  succeeds. 

This  rule  refers  as  well  to  testamentary  heirs  as  to  instituted  heirs 
and  universal  legatees,  but  not  to  particular  legatees. 

9  L.  146;  15L.  52T;  TK.  183;  2  A.  339;  See  12  K.  253 ;  4  A.  571 ;  5  A.  113  ;  15  L.  5C2. 

Art.  935. — The  right  mentioned  in  the  preceding  article,  is  acquired 
hy  the  heir  by  the  operation  of  the  law  alone,  before  he  has  taken  any 
step  to  put  himself  iu  possession,  or  has  expressed  any  will  to  accept  it. 

Thus  children,  idiots,  those  who  are  ignorant  of  the  death  of  the  de- 
ceased, are  not  the  less  considered  as  being  seized  of  the  succession, 
though  they  be  merely  seized  of  right  and  not  in  fact. 

9  L.  14G ;  15  L.  52T ;  7  R.  183 ;  2  A.  339 ;  See  15  L.  562. 

Art.  936. — The  heir  being  considered  seized  of  the  succession  from 
the  moment  of  its  being  opened,  tlie  right  of  possession,  which  the  de- 
ceased had,  continues  iu  the  person  of  the  heir,  as  if  there  had  been  no 
interruption,  and  independent  of  the  fact  of  possession. 

5  A.  113 ;  2  A.  339 ;  9  L.  146 ;  15  L.  527 ;  7  R.  173 ;  4  A.  571. 

Art.  937. — The  right  of  possession,  which  the  deceased  had,  being 
continued  in  the  person  of  his  heir,  it  results  that  this  possession  is 
transmitted  to  the  heir  with  all  its  defects,  as  well  as  all  its  advantages, 
the  change  in  the  proprietor  producing  no  alteration  in  the  nature  of  the 
possession. 

Thus  the  extent  of  the  rights  of  the  deceased  regulate  those  of  the 
heir,  who  succeeds  to  all  his  rights  which  can  be  transmitted,  that  is,  to 
all  those  which  arc  not,  like  usufruct,  attached  to  the  person  of  the  de- 
ceased. 

Art.  938. — The  heir  being  considered  as  having  succeeded  to  the 
deceased  from  the  instant  of  his  death,  the  first  effect  of  this  right  is  that 
the  heir  transmits  the  succession  to  his  own  heirs,  with  the  right  of  ac- 
cepting or  renouncing,  although  he  himself  have  not  accepted  it,  and  even 
in  case  he  was  ignorant  that  the  succession  was  opened  in  his  favor. 

2  L.  299 ;  See  Art.  936  and  references. 

Art.  939. — Tlie  second  effect  of  this  right  is  to  authorize  the  heii 
to  institute  all  the  actions,  even  possessory  ones,  which  the  deceased  had 
a  right  to  institute,  and  to  prosecute  those  already  commenced.  For 
the  heir,  in  every  thing,  represents  the  deceased,  and  is  of  full  right  in 
his  place  as  well  for  his  rights  as  his  obligations. 

See  2  A.  405  :  Art.  936. 

Art.  940. — Though  the  succession  be  acquired  by  the  heir  from  the 
moment  of  the  death  of  the  deceased,  his  right  is  in  suspense,  until  he 
decide  whether  he  accepts  or  rejects  it. 

If  the  heir  accept,  he  is  considered  as  having  succeeded  to  the  de- 
ceased from  the  moment  of  his  death ;  if  he  rejects  it,  he  is  considered 
as  never  having  received  it. 

2  A.  406 ;  4  A.  571 ;  5  A.  113 ;  8  L.  321. 

Art.  941. — The  lieir,  who  accepts,  is  considered  as  having  succeeded 
to  the  deceased  from  the  moment  of  his  death,  not  only  for  the  part  of 


134  OF  SUCCESSIONS. 

the  succession  belonging  to  liim  in  his  own  right,  but  for  the  parts  ac- 
cruing to  him  by  the  renunciation  of  his  co-heirs  in  the  succession  of  the 
deceased. 

Art.  942. — When  all  the  heirs  in  the  nearest  degree  renounce  the 
succession,  which  is  accepted  by  those  in  the  next  degree,  these  last  are 
considered  as  having  succeeded  directly  and  immediately  to  the  rights 
and  eflfects  of  the  succession  from  the  moment  of  the  death  of  the  de- 
ceased. 

Therefore  the  heirs,  thus  succeeding  by  the  renunciation  of  relations 
nearer  in  degree,  transmit  the  succession  to  their  own  heirs,  if  they  die 
before  having  accepted  it,  in  the  same  manner  as  if  they  had  succeeded 
in  the  first  degree  to  the  deceased. 

Art.  943. — Natural  children  and  the  surviving  husband  or  wife,  be- 
fore being  put  into  possession  of  the  estate  left  to  them,  are  not  con- 
sidered as  having  succeeded  to  the  deceased  from  the  instant  of  his 
death ;  but  they  do  not  the  less  transmit  their  rights  to  their  heirs,  if 
they  die  before  having  made  their  demand  to  be  put  into  possession. 
The  reason  is,  that  this  sort  of  heirs  having  only  a  right  of  action  to 
cause  themselves  to  be  put  into  possession  of  successions  thus  falling  to 
them,  this  right  and  this  action  form  a  part  of  the  succession,  which  they 
transmit  to  their  heirs. 

See  4  L.  267. 


CHAPTER  V. 

OF    THE    INCAPACITY  AND    UNWORTHINESS    OF    HEIRS. 

Art.  944. — The  incapacity  of  heirs  is  the  absence  of  those  qualities 
required  in  order  to  inherit  at  the  moment  the  succession  is  opened.  He 
who  wants  these  qualities  at  this  time  cannot  be  the  heir. 

It  is  at  the  moment  of  the  opening  of  the  succession  that  the  capacity 
or  incapacity  of  the  heir,  who  presents  himself  to  claim  an  intestate 
suqcession,  is  considered. 

6L.  560;  ITL.  46. 

Art.  945. — All  free  persons,  even  minors,  lunatics,  persons  of  insane 
mind  and  the  like,  may  transmit  their  estates  ab  intestato  and  inherit 
from  others. 

Slaves  alone  are  incapable  of  either. 

17  L.  312  ;  8  M.  161 ;  See  12  R.  585. 

Art.  946. — The  incapacity  of  heirs  is  not  presumed.  He  who 
alleges  it  must  prove  it. 

17  L.  46 ;  See  12  E.  585. 

Art.  947. — In  order  to  be  able  to  inherit,  the  heir  must  exist  at  the 
moment  the  succession  becomes  open. 

17  L.  46. 

Art.  948. — The  child  in  its  mother's  womb  is  considered  as  bom 
for  all  purposes  of  its  own  interest ;  it  takes  all  successions  opened  in 
its  favor  since  its  conception,  provided  it  be  capable  of  succeeding  at 
the  moment  of  its  birth. 

And  the  child  legitimated  by  a  marriage  posterior  to  its  conception, 


135  OF  SUCC-i^SSION-S.  135 

only  takes  those  successions  which  are  opened  since  the  marriage  of  the 
father  and  mother. 

IT  L.  46. 

Art.  949. — Nevertheless,  if  the  child  conceived  is  reputed  born,  it 
is  only  in  the  hope  of  its  birth ;  it  is  necessary  then  that  the  child  be 
born  alive,  for  it  cannot  be  said  those  who  are  born  dead  have  ever  in- 
herited. 

ITL.  46. 

Art  950. — When  the  child  is  born  alive,  though  it  may  have  been 
extracted  by  force  from  its  mother's  womb,  and  may  have  lived  but  an 
instant,  provided  the  fact  of  its  living  be  ascertained,  it  inherits  the 
successions  opened  in  its  favor  since  its  conception,  and  transmits  them 
accordingly. 

See  5  M.  93. 

Art.  951. — There  are  two  things  to  be  proved  in  order  to  vest  the 
child  with  the  right  of  inheriting ;  one,  that  the  child  be  conceived  at 
the  opening  of  the  succession ;  the  other,  that  the  child  be  born  alive. 

See  5  M.  93. 

Art.  952. — In  order  to  ascertain  if  the  child  has  been  conceived  in 
marriage,  and  can  inherit  from  the  husband  deceased,  after  its  concep- 
tion, reference  must  be  had  to  the  rules  concerning  the  filiation  of  legi- 
timate children  established  in  the  title  of  father  and  cltild. 

Art.  953. — In  all  cases  in  which  the  husband  cannot,  by  law,  contest 
the  legitimacy  of  the  child,  born  before  the  hundred  and  eightieth  day 
of  marriage,  he  will  have  a  right  to  the  succession  of  this  child,  and  to 
those  successions  which  fall  to  the  child,  in  the  same  manner  as  if  the 
child  had  been  regularly  legitimated. 

Art.  954. — If  the  mother  marry  again  within  two  months  after  the 
death  of  her  husband,  and  a  child  be  born  five  mouths  after  the  second 
marriage,  if  the  child  be  born  capable  of  living,  it  is  considered  the  issue 
of  the  first  marriage,  and  is  admitted  to  the  succession  of  the  first  hus- 
band. 

Art.  955. — In  the  calculation  of  the  number  of  months  necessary 
for  a  child  to  be  considered  as  born  capable  of  living,  thirty  days  are 
counted  for  each  month,  and  the  day  begun  is  counted  for  a  whole  day, 
because  it  is  for  the  interest  of  the  child. 

Art.  956. — Though  in  general  it  is  incumbent  on  those  who  allege 
incapacity  to  inherit  to  prove  it,  nevertheless,  those  who  claim  rights 
under  the  child,  on  account  of  its  having  survived,  are  bound  to  prove 
that  it  was  conceived  at  the  time  the  succession  was  opened,  and  that  it 
came  into  the  world  alive. 

Art.  957. — With  regard  to  the  proofs  necessary  to  establish  the 
existence  of  the  child  at  the  moment  of  its  birth,  it  must  not  be  deter- 
mined that  it  was  born  alive  by  the  simple  palpitation  of  its  members, 
but  by  its  respiration,  or  by  other  signs  which  demonstrate  its  exist- 
ence. 

Art  958. — They  are  called  unworthy  in  matters  of  succession,  who, 
by  the  failure  in  sonu  duty  towards  a  person,  have  not  deserved  to  in- 
herit from  him,  and  aie  in  consequence  deprived  of  his  succession. 

Art.  959. — There  is  this  difierence  between  being  unwortliy  and  in- 
capable of  inheriting,  that  he  who  is  declared  incapable  of  inheriting, 
has  never  been  heir,  whilst  he  who  is  declared  unworthy,  is  not  the  less 


136  OF  SUCCESSIONS. 

heir  on  that  account,  if  he  has  the  other  qualities  required  by  law  to  in- 
herit. Thus  a  person  unworthy  of  inheriting  remains  seized  of  the  suc- 
cession, until  he  is  deprived  of  it  by  a  judgment,  which  declares  him  di- 
vested of  it  for  cause  of  unworthiuess. 

Art.  960. — Persons  unworthy  of  inheriting,  and,  as  such,  depi'ived 
of  the  successions  to  which  they  are  called,  are  the  following  : 

1.  Those  who  are  convicted  of  having  killed,  or  attemjjted  to  kill 
the  deceased ;  and  in  this  respect  they  will  not  be  the  less  unworthy 
though  they  may  have  been  pardoned  after  their  conviction; 

2.  Those  who  have  brought  against  the  deceased  some  accusation 
found  calumnious,  which  tended  to  subject  the  deceased  to  an  infamous 
or  capital  punishment ; 

3.  Those  who,  being  apprised  of  the  murder  of  the  deceased,  have 
not  taken  measures  to  bring  the  murderer  to  justice. 

Art.  961. — The  unworthiuess  is  never  incurred  by  the  act  itself;  it 
must  be  pronounced  by  the  court  in  a  suit  instituted  against  the  heir 
accused  of  unworthiuess,  after  he  has  been  duly  cited. 

Art.  962. — Not  denouncing  the  murder  of  the  deceased  shall  not  be 
opposed  as  a  cause  of  unworthiuess  in  the  heir,  if  such  heir  is  the  hus- 
band or  wife  of  the  murderer,  or  his  relation  in  the  ascending,  descend- 
ing, or  collateral  line,  down  to  the  third  degree  inclusively. 

Art.  963. — If  the  heir  be  declared  unworthy  of  inheriting  by  a  de- 
finitive judgment,  he  shall  be  condemned  to  deliver  to  the  relations  suc- 
ceeding on  his  default,  or  those  who  have  succeeded  jointly  with  him, 
not  only  the  effects  of  the  succession  of  which  he  has  had  the  use  since 
its  opening,  but  all  the  fruits,'  revenues,  and  interest  he  has  derived  from 
such  effects,  since  the  opening  of  the  succession. 

Art.  964. — The  heir  being  legally  seized  of  the  succession,  until  a 
definitive  judgment  be  pronounced  declaring  that  he  is  unworthy,  and 
that  he  be  divested  of  the  succession,  all  sales  Avhich  he  may  have  made 
of  the  property  of  the  succession  are  valid,  provided  they  have  been 
made  without  fraud  on  the  part  of  the  purchasers. 

The  sales  are  also  valid,  though  they  may  have  been  made  since  the 
institution  of  the  suit  to  determine  the  unworthiuess  of  the  heir,  if  the 
purchasers  had  not  and  could  not  have  been  informed  of  its  being  insti- 
tuted. 

But  in  all  cases  the  heir,  thus  divested  of  the  succession,  shall  be 
condemned  to  restore  the  price  of  these  sales,  with  interest  from  the  day 
of  the  demand,  and  the  relations  who  succeed  on  his  default,  after  his 
destitution  is  pronounced,  shall  alone  have  the  right  to  exact  and  re- 
ceive the  sums  remaining  due  on  the  price  of  these  sales,  from  the  pur- 
CiiciSGrs 

See  6  M.  200 ;  6  N.  S.  432 ;  1  L.  312  ;  2  L.  461. 

Art.  965. — Mortgages  stipulated  without  fraud  by  the  heir  who  is 
afterwards  divested  for  cause  of  unworthiuess,  also  remain  in  force  in 
favor  of  the  parties  with  whom  they  have  been  contracted,  reserving  to 
the  person  succeeding  to  the  inheritance,  his  recourse  against  the  unwor- 
thy heir. 

Art.  966. — The  destitution  pronounced  against  the  heir,  revives  in 
his  favor  all  the  rights  and  actions  which  he  had  against  the  succession, 
and  which  had  been  for  a  time  extinguished  by  confusion. 


137  OF  SUCCESSIOiS^S.  1 37 

So,  in  case  he  Lad  paid  any  creditors  of  the  succession,  he  shall  be 
reimbursed,  and  those  who  have  not  been  paid,  have  no  right  of  action 
against  him ;  the  rights  and  actions  of  the  succession  against  the  heir, 
who  is  divested  for  cause  of  unworthiness,  are  also  revived. 

_  Art.  967. — The  children  of  the  person  declared  unworthy  to  succeed, 
being  admitted  to  the  succession  ab  inlcstato  in  their  own  name  and  with- 
out the  aid  of  the  representation,  are  not  excluded  by  the  fault  of  their 
father,  but  the  father  cannot  claim,  in  any  case,  upon  the  property  of 
that  succession,  the  usufruct  which  the  law  grants  him  in  certain 
cases. 

_  Art.  968. — The  exclusion,  either  for  cause  of  incapacity  or  unwor- 
thiness, shall  not  be  sued  for  by  others  than  the  relations  who  are  called 
to  the  succession  in  default  of  the  unworthy  heir,  or  in  concurrence  with 
him;  and  this  kind  of  suit  shall  be  determined  in  the  same  manner  as 
other  civil  actions. 

Art.  969. — Suits  to  establisli  tlie  unworthiness  of  heirs  cannot  be 
sustained,  if  there  has  been  a  reconciliation  or  pardon  on  the  part  of  him 
to  whom  the  injury  was  done. 

If  therefore  a  father  has  full  knowledge  of  an  injury  done  to  him  by 
one  of  his  cliildren,  and  died  witliout  disinheriting  "him,  tliough  he  has 
sufficient  time  to  make  his  will  since  he  has  had  this  knowledge,  he  will 
be  considered  as  having  forgiven  the  injury,  and  the  child  cannot  be 
deprived  of  the  succession  of  his  father  on  account  of  unworthiness. 


CHAPTER  VL 

IN  WHAT  MANNER  SUCCESSIONS  ARE    ACCEPTED,  AND  HOW  THEY  ARE 
RENOUNCED. 

Section  I. — Of  the  Accrptance  of  Successions. 

Art.  970, — No  one  can  be  compelled  to  accept  a  succession,  in  what- 
ever manner  it  may  have  fallen  to  him,  whether  by  testament  or  the 
operation  of  law.     He  may  therefore  accept  or  renounce  it. 

Stat.  I6th  March,  1848,  p.  84.— Henceforth  it  shall  not  be  neces- 
sary for  minor  heirs  to  make  any  formal  acceptance  of  a  succession  that 
may  fall  to  them,  but  that  such  acceptance  shall  be  considered  as  made 
for  them  with  benefit  of  inventory,  by  operation  of  law,  and  shall  in  all 
respects  have  the  full  force  and  eftcct  of  a  formal  acceptance. 

See  9  L.  135. 

Art.  971. — All  the  rules  relating  to  the  acceptance,  renunciation  or 
partition  of  successions,  the  collation  of  goods  and  payment  of  debts, 
contained  in  this  title,  are  applicable  to  testamentary  as  well  as  to  intes- 
tate successions 

IS  L.  394. 

Art.  972. — ^To  be  able  to  accept  a  succession,  it  is  necessary  that  the 
succession  should  be  open  by  the  death  of  the  person  who  is  to  be  suc- 
ceeded. 


138  OF  SUCCESSIONS. 

If,  therefore,  on  the  false  report  of  the  death  of  a  person,  his  relation, 
who  is  to  inherit  from  him,  assumes  the  quality  of  his  heir,  and  is  put 
into  possession  of  his  eifects,  these  acts  do  not  render  his  relation  his 
heir,  even  after  his  death,  unless,  since  his  death,  his  relation  has  con- 
tinued to  act  as  his  heir. 

Art.  973. — A  person  cannot  accept  a  succession  before  it  has  fallen 
to  him. 

Thus,  a  relation  to  the  deceased  in  the  second  degree  can  neither  ac- 
cept nor  renounce  the  succession,  until  he  who  is  related  in  the  first  de- 
gree has  expressed  his  intention  on  the  subject. 

And  in  testamentary  successions,  the  heir  ab  intestato  can  neither 
accept  nor  renounce,  until  the  instituted  heir  has  decided  to  accept  or 
renounce  the  succession. 

Art.  974. — It  is  not  sufl&cient  that  the  succession  be  fallen,  it  is  also 
necessary,  for  the  validity  of  the  acceptance,  that  the  heir  know  in  a  cer- 
tain manner  that  it  is  opened  or  fallen  to  him. 

Thus  he  who  is  ignorant  of  the  death  of  the  deceased,  though  the 
succession  be  really  opened,  can  neither  accept  nor  renounce  it. 

Art.  975. — If  the  heir  ab  intestato  accepts  the  succession,  under  the 
opinion  that  there  is  no  will,  his  acceptance  is  null,  if  a  will  be  discover- 
ed, of  the  existence  of  which-  he  was  ignorant. 

Art.  976. — He  who  accepts  ought  to  know  under  what  title  the  suc- 
cession is  left  to  him,  so  that  if  the  instituted  heir  accepts  the  succession 
as  coming  to  him  ab  intestato,  the  act  is  null. 

Art.  977. — It  is  sufficient  to  establish  the  validity  of  the  acceptance, 
that  the  heir  knows  that  the  succession  is  opened,  and  that  he  is  called 
to  it.  It  is  not  necessary  that  he  should  know  what  portion  of  it  is  left 
to  him. 

It  is  of  no  moment,  if  he  be  mistaken  as  to  the  degree  of  relation- 
ship which  he  bears  to  the  deceased,  and  which  gives  him  the  right  to 
inherit  from  him  ;  though  it  may  affect  the  amount  of  the  portion  coming 
to  him,  his  acceptance  is  not  the  less  valid  on  that  account  since  he  is 
an  heir. 

Art.  978. — The  acceptance  or  rejection  made  by  the  heir,  before 
the  succession  is  opened  or  left,  is  absolutely  null  and  can  produce  no 
effect ;  but  this  does  not  prevent  the  heir  who  has  thus  accepted,  from 
accepting  or  rejecting  validly  the  succession  when  his  right  is  complete. 

Art.  979. — The  heir  who  is  instituted  under  a  condition  cannot  ac- 
cept nor  renounce  the  succession,  before  the  condition  has  happened,  or 
while  he  remains  in  ignorance  of  the  condition  having  happened. 

It  is  the  same,  if  he  be  ignorant  of  the  institution  which  is  made  in 
his  favor. 

Art.  980. — He  who  has  the  power  of  accepting  the  entire  succession, 
cannot  divide  and  only  accept  a  part. 

Art.  981. — The  effect  of  the  acceptance  goes  back  to  the  day  of  the 
opening  of  the  succession. 

12  E.  243 ;  5  A.  113. 

Art.  982. — -The  simple  acceptance  may  be  either  express  or  tacit. 
It  is  express,  when  the  heir  assumes  the  quality  of  heir  in  an  uuqual- 


139  OF  SUCCESSIONS.  139 

ified  manner,  in  some  authentic  or  private  instrument,  or  in  some  judi- 
cial proceeding. 

It  is  tacit,  when  some  act  is  done  by  the  heir,  which  necessarily 
supposes  his  intention  to  accept,  and  which  he  would  have  no  right  to 
do  but  in  his  quality  of  heir. 

1  A.  2S0:  5  A.  113;  C  A.  13;  See5  K.  473;  0  L.  IT  ;  10  L.  41)9;  1  N.  S.  202;  2  N.  S.  432;  2  A.  405; 

Arts.  439,  1006. 

Art.  983. — By  the  word  act,  used  in  the  preceding  article,  is  under- 
stood any  writing  made  with  the  intention  of  obliging  himself  or  con- 
tracting as  heir,  and  not  a  simple  letter  or  note,  still  less  a  verbal 
declaration,  in  which  the  person  who  is  called  to  the  succession  may 
have  styled  himself  the  heir. 

2  N.  S.  556 ;  8  N.  S.  556 ;  19  L.  499. 

Art.  984. — It  is  necessary  that  the  intention  should  be  united  to 
the  fact,  or  rather  manifested  by  the  fact,  in  order  that  the  acceptance 
be  inferred. 

Sco6L.  IT;  19  L.  499. 

Art.  985. — The  person  who  is  called  to  the  succession,  if  he  dispose 
of  a  thing  which  he  docs  not  know  to  belong  to  the  succession,  does  not 
thereby  do  an  act  that  will  make  him  liable  as  heir,  because  such  an  act 
does  not  include  the  will  to  accept. 

19  L.  462 ;  See  19  L.  499. 

Art.  986. — On  the  other  hand,  there  are  some  acts  which,  though 
in  reality  they  are  foreign  to  the  succession,  nevertheless  evidently 
manifest  the  will  to  accept ;  as,  for  example,  if  the  person  who  is  called 
to  the  succession  possess  himself  or  dispose  of  effects  found  in  the  suc- 
cession, thinking  that  they  belong  to  it,  he  does  an  act  which  makes  him 
liable  as  heir,  because  his  belief  that  the  effects  appertained  to  the  suc- 
cession is  sufficient  to  establish  his  will  to  accept. 

19  L.  462 ;  3  A.  36 ;  See  2  E.  1ST. 

Art.  987. — There  are  some  facts  which  necessarily  suppose  the  will 
of  being  heir,  and  others  which  may  be  differently  interpreted,  according 
to  circumstances. 

19  L.  462;  8  A.  36. 

Art.  988. — All  those  acts  of  property  which  the  person  called  to 
the  succession  can  only  do  in  quality  of  heir,  suppose  necessarily  his 
acceptance,  for  to  act  as  owner  is  to  make  himself  heir. 

There  is  an  exception  to  this  rule  in  those  cases  in  which  the  acts  of 
property  are  necessary  for  the  preservation  of  the  thing,  as  is  hereafter 
explained. 

19  L.  462,  499 ;  5  A.  113 ;  See  3  L.  154 ;  2  E.  18T. 

Art.  989. — The  person  called  to  the  succession  does  not  commit  an 
act  of  heir  by  disposing  of  property  belonging  to  the  succession  by  an- 
other title  than  that  of  heir ;  as  if  he  should  be  testamentary  executor 
and  heir  at  the  same  time,  provided  that  in  disposing  of  the  property  he 
does  not  assume  the  quality  of  heir. 

SceSL.  154;  2  L.  8T1. 

Art.  990. — With  regard  to  these  acts,  which  may  be  differently 
interpreted  according  to  circumstances,  it  is  necessary  to  distinguish 
acts  of  property  from  acts  of  administration  or  of  preservation,  or  pre- 
paratory acts,  which  tend  ouly  to  ascertain  the  value  of  the  succession. 


140  0^'  SUCCESSIONS. 

The  time  when  these  acts  are  done  must  also  be  takeu  into  conside 


ration. 

See  19  L.  499. 

Art.  991. — Thus  acts  which  are  merely  conservatory,  and  the  object 
of  which  is  temporary,  such  as  superintendence  and  administration,  do 
not  amount  to  an  acceptance  of  the  inheritance,  unless  the  title  and 
quality  of  heir  should  be  therein  assumed. 

See  19  L.  499. 

Art.  992. — The  person  called  to  the  succession,  who  does  certain 
acts  either  from  necessity  or  for  the  benefit  of  the  succession  only,  may 
show  what  was  his  real  intent  by  reservations  or  protestations  made 
before  a  notary,  or  inserted  in  his  petition,  if  there  be  a  judicial 
proceedinff. 

^  See  2  L.  299. 

Art.  993. — Though  it  may  be  necessary  to  sell  some  of  the  effects 
of  a  succession  to  prevent  loss  or  waste,  the  sale  of  the  least  article  of 
property  belonging  to  the  succession  will  render  the  person  called  to 
the  succession  irrevocably  the  heir,  unless  he  cause  himself  to  be  autho- 
rized by  the  judge  to  make  this  sale  at  public  auction,  on  a  petition  in 
which  he  shall  allege  the  necessity  there  is  for  making  it,  and  shall  pro- 
test that  he  does  not  mean  by  this  act  to  do  an  act  that  would  make 
him  liable  as  heir. 

See  19  L.  499;  2  E.  1S7. 

Art.  994. — The  person  called  to  the  succession  does  an  act  which 
makes  him  liable  as  heir,  if,  when  cited  before  a  court  of  justice  as  heir 
for  a  debt  of  the  deceased,  he  suffers  judgment  to  be  given  against  him 
in  that  capacity,  without  claiming  the  benefit  of  the  inventory,  or  re- 
nouncing the  succession. 

See  19  L.  499;  8  N.  8.  232. 

Art.  995. — An  act  of  piety  or  humanity  towards  one's  relations  is 
not  considered  an  acceptance ;  it  is  not  therefore  an  acceptance  to  take 
care  of  the  burial  of  the  deceased,  or  to  pay  the  funeral  expenses,  even 
without  protestation. 

Art.  996. — The  donation,  sale  or  assignment,  which  one  of  the  co- 
heirs makes  of  his  rights  of  inheritance,  either  to  a  stranger  or  to  his 
co-heirs,  is  considered  to  be,  on  his  part,  an  acceptance  of  the  inherit- 
ance. 

Art.  997. — The  same  may  be  said,  1st,  of  the  renunciation,  even  if 
gratuitous,  which  is  made  by  one  of  the  heirs  in  favor  of  one  or  more  of 
his  co-heirs,  and  2d,  of  the  renunciation  which  he  makes  in  favor  of  all 
his  co-heirs  indistinctly,  when  he  receives  the  price  of  this  renunciation. 

Art.  998. — Those  who  are  not  capable  of  contracting  obligations, 
such  as  minors  or  persons  interdicted,  cannot  accept  an  inheritance; 
but  the  tutor  can  accept  inheritances  falling  to  the  share  of  his  pupil, 
and  so  can  the  curator  with  regard  to  those  who  are  under  his  curator- 
ship,  with  the  formalities  prescribed  by  law. 

8  L.  242 ;  See  3  K.  29. 

Art.  999. — The  acceptance  of  a  succession  by  a  married  woman 
without  the  authorization  of  her  husband  or  of  the  judge,  is  not  valid. 
Art.  1000. — If  the  wife  should  refuse  to  accept  an  inheritance,  her 


i41  OF  SUCCESSIONS.  141 

husband,  who  has  an  interest  to  have  it  accepted,  in  order  to  increase 
the  revenues  of  which  he  has  tlie  enjoyment  during  the  matrimony,  may, 
at  his  risk,  accept  it  on  the  refusal  of  his  wife. 

Art.  1001. — Not  only  the  person  who  is  entitled  to  an  inheritance 
may  accept  it,  but  if  he  dies  before  having  expressly  or  tacitly  accepted 
or  rejected  it,  his  heirs  shall  have  a  right  to  accept  it  under  him. 

Art.  1002. — When  several  heirs  in  the  same  degree  are  called  to  a 
succession,  some  may  accept  unconditionally,  others  under  the  benefit  of 
an  inventory ;  for  the  unconditional  heir  does  not  exclude  the  heir 
under  the  benefit  of  inventory. 

Art.  1003. — The  heir  who  is  of  age  cannot  dispute  the  validity  of 
his  acceptance,  whether  it  be  express  or  tacit,  unless  such  acceptance 
has  been  the  consequence  of  fraud  practised,  or  violence  exercised 
against  him ;  he  never  can  urge  such  claim  under  pretext  of  lesion. 

Art.  1004. — Nevertheless,  if  the  heir  who  has  expressly  or  tacitly 
accepted  the  succession,  has  not  put  himself  into  possession  before  he 
has  caused  a  true  and  faithful  inventory  to  be  made,  in  conformity  to 
that  which  is  prescribed  to  the  beneficiary  heir,  he  can  discharge  himself 
from  paying  the  debts  of  the  succession  out  of  his  own  property,  by 
abandoning  the  efi"ccts  of  the  succession  to  the  creditors  and  legatees  of 
the  deceased,  and  rendering  them  a  faithful  account  of  the  same,  as  well 
as  of  the  fruits  and  revenues  received  by  him. 

But,  in  order  to  enjoy  this  advantage,  the  heir  who  has  accepted, 
must  not  have  disposed  of  any  of  the  property  movable  or  immovable  of 
the  succession,  except  in  the  forms  prescribed  in  the  case  of  the  benefit 
of  inventory. 

He  must  not  have  been  decreed  by  a  definitive  judgment  to  be  the 
unconditional  heir,  nor  have  accepted  at  the  suit  of  the  creditors,  insti- 
tuted to  oblige  him  to  assume  this  quality. 

Art.  1005. — The  heir  who  has  accepted  the  succession  simply,  may 
even  be  compelled  to  make  an  inventory  of  the  succession,  and  to  give 
security  in  the  same  manner  as  in  the  case  of  the  benefit  of  an  inventory, 
if  a  majority  in  amount  of  the  creditors  of  the  succession,  either  present 
or  represented  in  the  parish  where  the  succession  is  opened,  require  it ; 
in  default  of  such  security,  there  shall  be  appointed  an  administrator  to 
administer  the  succession  according  to  the  provisions  of  the  section 
relative  to  the  benefit  of  inventory. 

10  Pv.  39C ;  1  A.  181. 

Stat.  25th  March,  1828,  p.  156. — \}  15.  In  obtaining  possession  of 
the  efiects  of  a  succession,  the  heirs  shall  not  be  permitted,  under  any 
pretence  whatsoever,  to  have  an  actual  delivery  of  any  property  of  such 
succession  which  may  be  in  suit,  or  to  receive  the  proceeds  or  any 
moneys  of  said  succession  when  there  shall  be  claims  thereon  pending  in 
said  courts,  unless  they  previously  give  good  and  sufficient  security,  if 
the  plaintifi"  or  plaintifi's  in  such  suits  require  it,  and  file  their  written 
obligation  to  that  cifect  in  the  said  court  of  probates,  which  security 
shall  be  of  one-fourth  over  and  above  the  amount  of  the  claims  for  money 
thus  pending,  or  of  the  appraised  value  of  the  property  thus  claimed, 


142  OF  SUCCESSIONS. 

which  estimation   shall  be   made  by  two  appraisers  appointed  by  the 
judge. 

Art.  1006. — The  eflfect  of  the  simple  acceptance  of  the  inheritance, 
whether  express  or  tacit,  is  such,  that  when  made  by  an  heir  of  age,  it 
binds  him  to  the  payment  of  all  the  debts  of  the  succession,  not  only 
out  of  the  effects  which  have  fallen  to  him  from  the  succession,  but  even 
personally,  and  out  of  his  own  property,  as  if  he  had  himself  contracted 
the  debts  or  as  if  he  was  the  deceased  himself ;  unless,  before  acting  as 
heir,  he  make  a  true  and  faithful  inventory  of  the  effects  of  the  succes 
sion,  as  here  above  established,  or  has  taken  the  benefit  treated  of  here 
after. 

The  engagement  of  the  heir,  who  has  accepted  unconditionally,  is 
somewhat  different  with  respect  to  legacies,  as  shall  be  hereafter 
explained. 

3R.  29;  HE.  396. 

Section  II. — Of  the  Renunciation  of  Successions. 

Art.  1007. — He  who  is  called  to  the  succession,  being  seized  thereof 
in  right,  is  considered  the  heir  as  long  as  he  does  not  manifest  the  will 
to  divest  himself  of  that  right  by  renouncing  the  succession. 

Stat.  29th  March,  1826,  p.  142. — ^  9.  In  all  cases  of  cessions  of 
property  by  insolvent  debtors,  and  in  all  cases  of  renunciations  of  suc- 
cessions by  the  heirs,  if  there  shall  remain  a  surplus  after  payment  of 
all  the  debts,  the  same  shall  be  paid  over  to  the  ceding  debtor  or  debt- 
ors, their  heirs  or  assigns,  or  to  the  heirs  who  have  made  the  renuncia- 
tion, their  heirs  or  assigns,  as  the  case  may  be. 

See  2  L.  871. 

Art.  1008. — A  succession  may  be  renounced  only  under  the  same 
circumstances  in  which  it  can  be  legally  accepted,  according  to  the  rules 
established  in  the  preceding  section. 

Art.  1009. — A  succession  can  neither  be  accepted  nor  rejected  con- 
ditionally. 

Art.  1010. — The  renunciation  of  a  succession  is  not  presumed,  it 
must  be  made  expressly  by  public  act  before  a  notary,  in  presence  of 
two  witnesses. 

2  L.  371 ;  See  13  L.  58. 

Art.  1011. — He  to  whose  share  an  inheritance  falls,  may  refuse  it, 
provided  he  be  capable  of  alienating  ;  for  the  renunciation  of  an  inherit- 
ance is,  in  all  respects,  assimilated  to  an  alienation. 

Thus,  a  minor  cannot  make  a  valid  refusal  of  an  inheritance,  with- 
out the  authorization  of  the  judge,  and  of  his  tutor  or  curator. 

The  same  rule  applies  to  those  who  are  interdicted. 

3  L.  242. 

Art.  1012. — A  woman,  under  the  power  of  her  husband,  cannot 
refuse  the  inheritance  falling  to  her  share,  unless  she  is  duly  authorized 
to  that  effect  by  her  husband,  or,  on  the  denial  of  her  husband,  by  the 
judge. 

Art.  1013. — He  who  is  called  to  an  inheritance  may  accept  or  re- 
nounce the  succession  by  himself  or  by  an  attorney  in  fact,  provided 
the  attorney  be  specially  appointed  to  that  effect. 

1  N.  S.  638. 


143  OF  SUCCESSIONS.  143 

Art.  1014. — The  creditors  of  the  heir,  who  refuses  to  accept  or 
w^ho  renounces  an  inheritance  to  the  prejudice  of  their  rights,  can  be 
authorized  by  the  judge  to  accept  it,  in  the  name  of  their  debtor  and  in 
his  stead,  according  to  the  forms  prescribed  on  this  subject  in  the  fol- 
lowing section. 

In  case  of  this  accepta,nce,  if  there  be  a  renunciation  on  the  part  of 
the  debtor,  the  renunciation  is  annulled  only  in  favor  of  the  creditors, 
for  as  much  as  their  claims  amount  to,  but  it  remains  valid  against  the 
heir  who  has  renounced. 

If,  therefore,  after  the  payment  of  the  creditors,  any  balance  remain, 
it  belongs  to  his  co-heirs  who  may  have  accepted  it,  or  if  the  heir  who 
has  renounced  be  the  only  one  of  his  degree,  it  goes  to  the  heirs  who 
come  after  him. 

If,  on  the  contrary,  the  heir  has  only  refused  to  accept  and  has  not 
renounced,  he  can  claim  the  surplus,  on  accepting  the  succession,  pro- 
vided his  right  of  acceptance  be  not  pi-escribed  against. 

Art.  1015. — The  portion  of  the  heir  renouncing  the  succession,  goes 
to  his  co-heirs  of  the  same  degree  ;  if  he  has  no  co-heirs  of  the  same 
degree,  it  goes  to  those  in  the  next  degree. 

This  right  of  accretion  only  takes  place  in  lawful  or  intestate  succes- 
sions. In  testamentary  successions,  it  is  only  exercised  in  relation  to 
legacies,  and  in  certain  cases. 

12  L.  575. 

Art.  lOlG. — The  accretion  operates  of  full  right,  independently  of 
the  will  of  the  person  for  whose  benefit  it  is,  and  whether  he  be  ignoi-ant 
or  not  of  the  renunciation  which  gave  rise  to  it. 

12  L.  575. 

Art.  1017. — He  in  whose  favor  the  right  of  accretion  exists,  can- 
not refuse  the  portion  of  the  heir  who  has  renounced,  and  keep  that 
part  which  has  fallen  to  him  in  his  own  right,  because  he  is  bound  to 
accept  or  renounce  for  the  whole. 

Art.  1018. — The  rule  contained  in  the  preceding  article,  admits  of 
an  exception,  wlien  the  heir,  who  has  already  accepted,  has  caused  his 
acceptance  to  be  rescinded ;  for  in  this  case  his  co-heirs  may  refuse  the 
portion  which  he  has  thus  abandoned,  and  release  themselves  from  the 
debts  with  which  it  is  incumbered,  by  abandoning  this  portion  to  the 
creditors. 

Art.  1019. — The  accretion  is  for  the  benefit  of  the  heirs  who  have 
accepted,  or  who  may  accept ;  an  heir,  who  has  once  renounced,  has  no 
claim  to  the  portion  of  him  who  afterwards  renounces. 

Art.  1020. — The  heirs,  to  whom  the  portion  comes  by  the  renunci- 
ation of  their  co-heirs,  take  it  in  the  same  proportion  that  they  do  the 
inheritance. 

Art.  1021. — The  partition  of  it  is  made  among  them,  in  their  own 
rights  or  by  representation,  in  the  same  manner  as  the  succession  is 
divided. 

Art.  1022. — Heirs,  who  have  embezzled  or  concealed  effects  be- 
longing to  the  estate,  lose  the  faculty  of  renouncing ;  and  they  shall 
remain  unconditional  heirs,  notwithstanding  their  renunciation,  and 
shall  have  no  share  in  the  property  thus  embezzled  or  concealed. 

See  4  L.  485. 


144  OF  SUCCESSIONS. 

Art.  1023. — The  faculty  of  accepting  or  renouncing  an  iulieritauce 
becomes  barred  by  the  lapse  of  time  required  for  the  longest  prescrip- 
tion of  the  rights  to  real  estates. 

Art.  1 024. — So  long  as  the  prescription  of  the  right  of  accepting  is 
not  acquired  against  the  heirs  who  have  renounced,  they  have  the  faculty 
still  to  accept  the  inheritance,  if  it  has  not  been  accepted  by  other  heirs, 
without  prejudice,  however,  to  rights  which  may  have  been  acquired  by 
third  persons  upon  the  property  of  the  succession,  either  by  prescrip- 
tion, or  by  lawful  acts  done  with  the  administrator  or  curator  of  the 
vacant  estate. 

In  like  manner,  so  long  as  the  prescription  of  renunciation  is  not 
determined,  the  heir  may  still  renounce,  provided  he  has  made  an  act 
to  make  himself  liable  as  heir. 

9  L.  135 ;  2  A.  466 ;  See  Ait.  347. 

The  words  ^^ made  an''''  should  bo  omitted  in  the  second  line  of  the  last  paragraph,  and  the  words 

'■^done  no''''  inserted.    See  French  text.    See  original  in  the  office  of  the  Secretary  of  State. 

Section  III. —  Of  the  Benefit  of  Inventory  and  the  Delays  for  Deh- 

berating. 

Art.  1025. — The  benefit  of  inventory  is  the  privilege  which  the 
heir  obtains  of  being  liable  for  the  charges  and  debts  of  the  suc- 
cession, only  to  the  value  of  the  effects  of  the  succession,  in  causing  an 
inventory  of  these  effects  to  be  made  within  the  time  and  in  the  manner 
hereinafter  prescribed. 

Art.  1026. — By  term  for  .deliberating  is  understood  the  time  given 
to  the  beneficiary  heir,  to  examine  if  it  be  for  his  interest  to  accept  or 
reject  the  succession  which  has  fallen  to  him. 

Art.  1027. — The  heir,  who  wishes  to  enjoy  the  benefit  of  inventory 
and  the  term  for  deliberating,  is  bound,  as  soon  as  he  knows  of  the 
death  of  the  deceased  to  whose  succession  he  is  called,  and  before 
committing  any  act  of  heirship,  to  cause  the  seals  to  be  afiixed  on  the 
efi"ects  of  the  succession,  by  any  judge  or  justice  of  the  peace. 

Art.  1028. — In  ten  days  after  this  affixing  of  the  seals,  the  heir  is 
bound  to  present  a  petition  to  the  judge  of  the  place  in  which  the  suc- 
cession is  opened,  praying  for  the  removal  of  the  seals,  and  that  a  true 
and  faithful  inventory  of  the  effects  of  the  succession  be  made,  as  is 
hereinafter  prescribed. 

Art.  1029. — In  all  cases,  in  which  a  succession  is  opened,  and  the 
presumptive  heirs,  who  are  present  or  represented,  do  not  take  the 
necessary  measures  to  cause  the  seals  to  be  affixed  to,  and  an  inventory 
made  of  the  effects  of  the  succession,  any  creditor  of  the  deceased  has 
the  right,  ten  days  after  the  opening  of  the  succession,  to  cite  the  heirs 
before  the  judge  of  the  place  in  which  it  is  opened,  in  order  to  oblige 
them  to  declare  whether  they  accept  or  renounce  the  succession. 

2  L.  299. 

Art.  1030. — If  the  heirs  thus  cited  declare  that  they  accept  the  suc- 
cession, or  if  they  are  silent  or  make  default,  they  shall  be  considered 
as  having  accepted  the  succession  as  unconditional  heirs,  and  may  be 
sued  as  such. 

Art.  1031. — If,  on  the  contrary,  the  heirs  thus  cited  declare  that 
they  wish  to  take  the  benefit  of  inventory,  and  have  the  delay  for  delibe- 


145  OF  SUCCESSIONS  145 

rating,  tlie  judge  shall  grant  tliom  the  delay,  and  order  all  proceedings 
against  them,  personally  or  as  heirs,  to  be  suspended  until  the  term  ha^ 
expired. 

6  N.  S.  293 ;  2  L.  299 ;  7  R.  24 ;  12  E.  41. 

Art.  1032. — "Whether  the  heir  claims  directly  the  term  to  deliberate, 
or  whether  it  is  claimed  at  the  suit  of  the  creditors  of  the  succession,  it 
shall  be  the  duty  of  the  judge  to  cause  all  the  property  belonging  to  the 
estate  to  be  exhibited,  and  to  make  an  inventory  thereof,  or  to  cause  the 
same  to  be  made  by  a  notary  duly  authorized  by  him,  which  must  be 
done  without  delay,  and  after  calling  the  heir,  and  in  his  presence  or 
that  of  his  attorney,  if  either  attend,  and  of  two  witnesses. 

12  R.  41. 

Art.  1033. — If  there  are,  belonging  to  the  succession,  eifects  situated 
in  difiFerent  parishes,  the  judge  of  the  place  where  the  succession  is 
opened,  shall  address  commissions  to  the  judges  of  these  parishes,  au- 
thorizing them  to  make  the  inventory  of  the  property  situated  within 
their  respective  jurisdiction ;  these  judges  are  bound  to  make  the  inven- 
tory as  soon  as  possible,  in  the  manner  prescribed  in  the  preceding  ar- 
ticle, and  shall  return,  without  delay,  certified  copies  of  the  same  to  the 
judge  issuing  the  commissions. 

Art.  1034.— As  soon  as  the  inventory  or  inventories  of  the  succes- 
sion are  finished,  the  judge  of  the  place  where  the  succession  is  opened, 
shall  name  an  administrator  to  manage  the  property  thereof,  and  oblige 
him  to  give  good  and  sufficient  security  for  the  fidelity  of  his  adminis- 
tration, unless  the  administrator  prefer  to  furnish,  in  the  stead  of  this 
security,  a  special  mortgage  on  unincumbered  property  of  a  value  suffi- 
cient to  serve  as  a  guaranty  for  his  administration. 

12L.:i!9;  liR.  41:    lA,  181;    4A.  55S;    6  A.  64;    See  IT  L.  104;    IR.  407;   7R.  24;   9  E.  13S  ; 

11  R.  17. 

Art.  1035. — In  the  choice  of  the  administrator  th^  preference  shall 
be  given  to  the  beneficiary  heir  over  every  other  person,  if  he  be  of  age 
and  present  in  the  State. 

4L.565;   6L.2n5;   1SL.894;   IE.  285;   lA.lSl;    2A.26S;   4A.25;   Bec5A.G92;   C.P.970, 

6  L.  205. 

Art.  1036. — If  there  be  two  or  more  beneficiary  heirs  of  age  and 
present  in  this  State,  the  judge  shall  select  one  or  two  whom  he  shall 
consider  the  most  solid,  for  the  administration  of  the  succession. 

1  A.  181 ;  3  A.  5G5 ;  5  A.  C92 ;  C  L.  215. 

Art.  1037. — If  all  the  beneficiary  heirs  be  minors,  their  tutors  or 
curators  can  claim  the  preference  for  the  administration,  and  it  shall  be 
given  them,  under  the  charge  of  their  being  personally  responsible  for 
their  acts  of  administration,  and  giving  security,  as  before  required, 
though  these  tutors  or  curators  should  be  the  father  or  mother  of  the 
minors. 

aL.299;    6L.205,493;    12E.41;    4A.558;   5A.27;   See  17  L.  104;  1  E.  407;  7  E.  24;  9  E.  138; 

11  E.  67. 

Art.  1038. — If  the  beneficiary  heirs  are  absent,  but  represented  in 
the  State,  their   attorneys  in  fact  can  claim,  in  the  name  of  their  con- 
stituents, the  preference  "for  the  administration  over  every  creditor  of  the 
succession,  provided  they  have  a  special  power  to  accept  or  reject  this 
10 


146  OF  SUCCESSIONS. 

succession,  or  a  general  power  to  accept  or  reject  all  successions  which 
may  fall  to  their  principals. 

5  N.  S.  11 ;  7  L.  395 

Art.  1039. — In  case  there  be  neither  beneficiary  heir,  special  at- 
torney in  fact,  tutor  nor  curator  of  the  heirs,  who  will  or  can  accept  the 
administration  or  give  the  necessary  securities,  it  shall  be  given  to  one 
or  two  of  the  creditors,  whom  the  judge  shall  choose  from  among  those 
who  have  first  claimed  this  charge. 

18  L.  394 

Art.  1040. — If  there  be  several  heirs  to  a  succession,  some  of  which 
have  accepted  unconditionally,  and  others  claim  the  benefit  of  the  term 
for  deliberating,  the  judge  of  the  place,  where  the  succession  is  opened, 
shall,  notwithstanding,  cause  an  inventory  to  be  made  of  the  eflfects  of 
the  succession,  and  shall  appoint  an  administrator  to  manage  them,  until 
a  partition  of  the  same  be  made  among  the  heirs. 

12  R.  41 ;  1  A.  181 ;  2  A.  412 ;  3  A.  502 ;  See  4  Pw  412 ;  2  A.  462 ;  5  A.  196;  C.  P.  9T6;  6  L.  205,  493. 

Art.  1041. — The  security  to  be  given  by  every  administrator  thus 
named,  shall  be  one-fourth  beyond  the  estimated  value  of  the  movables 
and  immovables,  and  of  the  credits  comprised  in  the  inventory,  exclusive 
of  the  bad  debts.  By  bad  debts  are  understood  those  which  have  been 
prescribed  against,  and  those  due  by  bankrupts  who  have  surrendered 
no  property  to  be  divided  among  their  creditors. 

12  Pv.  155 ;  4  A.  553  ;  6  A.  64 ;  See  IT  L.  104 ;  1  Pv.  407 ;  7  E.  24 ;  9  Pv.  13S ;  12  E.  41. 

Art.  1042. — The  administrators  thus  chosen  have  the  same  powers 
and  are  subject  to  the  same  duties  and  responsibilities  as  the  curators 
of  vacant  estates,  under  the  modifications  hereafter  made. 

7  N.  S.  466 ;  8  N.  S.  581 ;  8  L.  412  ;  13  L.  436 ;  12  L.  129  ;  14  L.  Ill ;  17  L.  500 ;  7  E.  247  •,  10  E.  467; 
11  E,  5U8  ;  2  A.  966 ;  C.  P.  992,  994. 

Art.  1043. — The  term  given  to  the  beneficiary  heir  to  deliberate 
wliether  he  will  accept  or  reject  the  succession,  shall  be  thirty  days  from 
tlie  day  on  which  the  inventory  is  finished. 

If  there  have  been  inventories  made  in  different  parishes,  the  term 
commences  from  the  day  the  last  of  them  is  finished. 

Art.  1044. — The  administrator  cannot  sell  the  real  estate  or  slaves 
of  the  succession  committed  to  his  charge,  until  the  term  for  delibera- 
ting has  expired,  and  as  to  movables,  if  there  be  any  liable  to  be  wasted 
or  expensive  to  keej^,  he  caii  sell  them  on  the  special  authorization  of 
the  judge,  at  public  auction,  after  advertisement  during  the  time  and  in 
the  manner  prescribed  by  law. 

Nevertheless,  the  judge  can  authorize  the  administrator  to  sell,  in 
the  same  manner,  movable  efi"ects  which  might  be  preserved,  if  it  be 
necessary  to  dispose  of  tlie  whole  or  part  of  them  in  order  to  pay  debts, 
the  payment  of  which  is  urgent. 

10  L.  435 ;  17  L.  600. 

Art.  1045. — During  the  term  for  deliberating,  the  beneficiary  heir 
cannot  be  compelled  to  assume  the  quality  of  heir,  nor  can  any  judgment 
be  rendered  against  him.     If  he  renounces  at  the  expiration  of  the  term 


147  OF  SUCCESSIONS.  147 

or  before,  the  costs  by  liim  lawfully  incurred  to  obtain  the  benefit  of  in- 
ventory up  to  the  renunciation,  are  at  the  expense  of  the  succession. 

Art.  1046. — Nevertheless,  the  creditors  of  the  deceased  may  insti- 
tute their  suits  against  the  administrator  of  the  succession ;  but  on  the 
exception  being  made  by  the  administrator  that  the  beneficiary  heir  is 
within  the  time  for  deliberating,  the  proceedings  shall  be  stayed  until 
the  expiration  of  the  term,  and  until  the  heir  has  decided. 

2  L.  299 ;  2  A.  575. 

Art.  1047. — The  effect  of  the  benefit  of  inventory  is  that  it  gives 
the  heir  the  advantage  : 

1.  Of  being  discharged  from  the  debts  of  the  succession  by  abandon- 
ing all  the  effects  of  the  succession  to  the  creditors  and  legatees ; 

2.  Of  not  confounding  his  own  effects  with  those  of  the  succession, 
and  of  preserving  against  it  the  right  of  claiming  the  debts  due  him 
from  it. 

See  4  L.  14. 

Art.  1048. — At  the  expiration  of  the  term  for  deliberating,  the 
creditors  and  legatees  of  the  succession  can  compel  the  heir  to  decide 
whether  he  accepts  or  rejects  the  succession,  and  they  shall  present  a  pe- 
tition to  this  effect  to  the  judge  of  the  place  where  the  succession  is 
opened,  who  shall  cause  the  beneficiary  heir  to  be  cited  to  ansAver  thereto. 

Art.  1049. — If,  on  this  demand,  the  beneficiary  heir  declares  that 
he  accepts  the  succession  simply,  all  the  effects  which  compose  it  must 
immediately  be  delivered  to  him,  but  then  he  becomes  responsible  for 
the  debts  of  the  succession,  not  only  to  the  amount  of  the  effects  thereof, 
but  personally  and  out  of  his  own  property,  and  the  creditors  of  the  de- 
ceased can  obtain  judgment  against  him. 

Art.  1050. — In  case  the  heir  makes  default  on  this  demand,  he  shall 
be  considered  as  unconditional  heir,  and  be  bound  as  such. 

Art.  1051. — But  if  the  heir  declares  that  he  is  not  willing  to  accept 
the  succession,  otherwise  than  under  the  benefit  of  an  inventory,  the 
person  appointed  administrator  of  the  estate,  whether  it  was  the  heir 
himself  or  any  other  individual,  shall  proceed  to  the  sale  of  the  property 
of  the  succession  and  to  the  settlement  of  its  affair.?,  as  prescribed  in  the 
following  articles ;  the  beneficiary  heir  shall,  at  the  time  of  such  settle- 
ment, have  a  right  to  be  paid,  as  any  other  creditor,  all  debts  due  him 
by  the  deceased,  and  shall  moreover  be  entitled  to  the  balance  of  the 
proceeds  of  the  sale  of  the  estate,  if  any  such  balance  be  left  after  pay- 
ment of  all  the  debts  and  charges  of  the  succession. 

4  L.  44T ;  7  R.  24 ;  10  E.  457 ;  11  R.  508 ;  12  R.  41,  24-3,  323. 

Art.  1052. — If,  on  the  contrary,  the  beneficiary  heir  renounces  in 
due  form,  he  preserves  all  the  rights  he  has  against  the  succession,  if  he 
is  a  creditor  ;  and  in  case  he  has  been  originally  appointed  administrator 
of  the  succession  he  shall  continue  to  manage  it  in  this  capacity,  even  if 
he  is  not  a  creditor  of  the  deceased. 

Art.  1053. — If  on  the  renunciation  of  the  beneficiary  heir,  the  heirs, 
called  to  the  succession  on  his  default,  accept  the  succession,  they  shall 


148  OF  SUCCESSIONS. 

be  admitted  thereto,  and  they  shall  have  the  right  to  enjoy  that  part  of 
the  term  for  deliberating,  which  has  not  expired,  should  the  heir  re- 
nounce before  its  expiration. 

But  if  the  term  has  expired,  the  heirs  cannot  obtain  a  prolongation 
of  it,  but  must  immediately  decide  whether  they  accept  or  reject  the 
succession,  as  is  provided  for  above. 

2  A.  4. 

Art.  1054. — If  the  heir  secrete  any  th.ng  belonging  to  the  succes- 
sion, or  has  knowingly,  and  in  bad  faith  failed  to  include  in  the  inven- 
tory any  of  the  effects  of  the  succession,  he  is  deprived  of  the  benefit  of 
inventory. 

4  L.  485. 

Art.  1055. — As  soon  as  the  beneficiary  heir  has  renounced  in  due 
form,  if  no  heirs  present  themselves  to  accept  the  succession  on  his  de- 
fault, or  if  they  themselves  renounce,  the  administrator  shall  cause  the 
immovables  and  other  effects  of  the  succession,  remaining  undisposed  of, 
to  be  sold  on  the  authorization  of  the  judge,  and  after  advertisement 
during  the  time  and  in  the  manner  prescribed  by  law. 

7L.  812;  17  L.  500. 

Art.  1056. — After  the  sale  of  the  effects  of  the  succession  thus  made, 
the  administrator  shall  render  his  account  to  the  judge  who  has  appoint- 
ed him,  whose  duty  it  is  to  examine  and  correct  or  approve  of  the  same ; 
but  the  administrator  cannot  pay  the  debts  or  legacies,  even  when  there 
are  sufficient  funds,  without  being  authorized  by  the  judge  to  that 
effect. 

If  there  be  sufficient  funds,  the  administrator  shall  present  to  the 
judge  a  statement  of  the  payments  to  be  made,  in  which  he  shall  include 
the  debts  before  any  legacies;  and  if  the  funds  in  hands  are  not  suffi- 
cient for  the  payment  of  the  debts,  he  shall  make  a  plan  of  the  distribu- 
tion to  be  made  among  the  privileged  and  mortgage  creditors,  according 
to  the  order  of  the  privileges  and  mortgages,  and  showing  the  dividend 
due  to  each. 

2  A.  412,  459 ;  See  11  L.  409 ;  12  R.  243 ;  C.  P.  1053  to  1055. 

Art.  1057. — The  judge,  on  the  demand  of  the  administrator,  shall 
order  that  the  creditors  and  legatees  of  the  succession  be  notified  to  show 
cause,  if  any  they  have,  within  ten  days,  why  they  should  not  be  paid 
conformably  with  the  authorization  solicited  by  the  administrator,  or  ac- 
cording to  the  tableau  of  distribution  by  him  presented. 

2  A.  4. 

Art.  1058. — If,  in  ten  days  after  this  notice,  there  is  no  opposition 
on  the  part  of  the  creditors  or  legatees,  the  administrator  shall  proceed 
to  the  payment,  in  conformit}^  with  the  authorization  by  him  obtained, 
or  the  tableau  of  distribution  which  he  has  presented,  and  which  the 
judge  shall  cause  to  be  homologated. 

Art.  1059. — If,  on  the  contrary,  there  is  any  opposition  to  the  pay- 
ment or  to  the  tableau  of  distribution,  the  judge  shall  decide  thereon  in 
a  summary  manner ;  but  if  his  decision  be  appealed  from,  the  adminis- 
trator can  make  no  payment,  until  final  judgment  be  rendered  thereon. 

C  N.  S.  350. 


149  OF  SUCCESSIONS.  149 

Art.  1060. — When,  after  payment  has  thus  been  made,  new  credi- 
tors present  themselves,  who  have  not  made  themselves  known  before,  if 
there  be  not  funds  sufficient  to  pay  them  in  the  hands  of  the  administra- 
tor, they  can  oblige  the  legatees,  who  have  been  paid,  to  return  their 
legacies  entirely,  or  a  due  proportion  thereof,  in  order  to  satisfy  their 
debts  with  interest  and  costs. 

5  A.  3S;  Sec  10  L.  264. 

Art.  1061. — But  if  the  sums  thus  returned  by  the  legatees  are  not 
sufficient  to  pay  the  creditors  who  have  thus  presented  themselves,  or 
if  there  are  no  legatees,  these  creditors  have  a  direct  action  agahist  the 
other  creditors  who  have  been  paid,  to  oblige  them  to  make  up  to  the 
former  a  sum  equal  to  that  which  the  former  would  have  received,  had 
they  presented  themselves  before  ;  provided  that  the  creditors,  who  have 
bepn  paid  in  virtue  of  a  privilege  or  mortgage,  cannot  be  obliged  to  make 
this  contribution,  by  new  creditors  who  have  neither  privilege  nor  mort- 
gage. 

But  this  action  of  the  creditors  who  have  not  been  paid,  against  the 
creditors  and  legatees  who  have  been  paid,  is  barred  by  the  lapse  of 
three  years  from  the  date  of  the  order  or  definitive  judgment  by  virtue 
of  which  such  payment  has  been  made.  In  all  these  cases,  these  credi- 
tors have  no  right  to  sue  the  administrator,  who  has  made  the  payment 
by  order  of  the  court,  and  according  to  the  forms  herein  prescribed. 

5  A.  88. 

Art.  1062. — The  administrator  shall  be  allowed,  on  the  settlement 
of  his  account,  a  commission  of  two  and  one-half  per  cent,  on  the  amount 
of  the  inventory  of  the  effects  of  the  succession  committed  to  his  charge, 
deduction  being  made  of  the  bad  debts. 

If  there  are  two  administrators,  they  divide  this  commission. 

12  L.  608 ;  12  K.  155 ;  8  A.  624 ;  See  5  N.  8.  229 ;  3  L.  464 ;  1  R.  400 ;  4  A.  624 ;  Arts.  1187, 1188, 1676. 

Art.  1063.— The  expenses  of  the  seals,  if  they  have  been  affixed,  of 
the  inventory  and  sale,  and  of  the  account  rendered  by  the  administra- 
tor, and  other  charges  of  the  same  kind,  are  at  the  cost  of  the  suc- 
cession. 

1  R.  98. 

Art.  1064. — When  the  creditors  wish  to  be  authorized  to  accept  a 
succession,  which  their  debtor  refuses  to  accept,  or  which  he  has  re- 
nounced to  their  prejudice,  they  must  j^rcscnt  a  petition  to  the  judge  of 
the  place  where  the  succession  is  opened,  to  obtain  the  authorization 
necessary  for  that  purpose,  after  the  debtor  or  his  representative  has 
been  duly  cited,  or  a  counsel  appointed  for  him,  if  he  is  absent,  by  the 
judge. 

See  2  L.  466. 

Art.  1065.— If,  on  tliis  demand,  it  is  proved  to  the  judge  that  the 
debtor  refuses  to  accept  the  succession,  or  has  renounced  it  to  the  preju- 
dice of  his  creditors,  he  is  bound  to  authorize  the  creditors  to  accept  it 
in  his  stead ;  and  it  is  the  duty  of  the  judge  to  cause  immediately  to  be 
made  an  inventory  of  the  effects  of  the  succession,  to  appoint  an  adminis- 
trator to  manage  them,  sell  them  and  pay  the  creditors,  on  his  giving 


150  OF  SUCCESSIONS. 

good  and  suf&cient  security  for  the  fidelity  of  his  administration,  as  in 
the  case  of  acceptance  with  the  benefit  of  inventory. 

12  L.  129. 

Art.  1066. — After  having  paid  the  creditors,  deducted  his  commis- 
sion and  other  lawful  expenses,  if  there  remains  a  balance  in  the  hands 
of  the  administrator,  he  shall  pay  it  over  to  the  presumptive  heir,  if  the 
latter  has  not  renounced  the  succession,  or  to  the  heirs  who  inherit  on 
his  default,  if  he  has  renounced  it. 

2  A,  412. 

Art.  1067. — The  creditors,  who  thus  accept  a  succession  in  the 
name  of  their  debtor,  are  considered  as  accepting  it  under  benefit  of  in- 
ventory. 

CHAPTER  VII. 

OF  THE  SEALS  AND  OF  THE  ADMINISTRATION  OF    VACANT    ESTATES,    AND    ES- 
TATES OF  WHICH  THE  HEIRS  ARE  ABSENT  AND    NOT  REPRESENTED. 


Section  I. — Of  the  Seals,  and  of  the  Affixmg  and  Talcing  off  of 

the  same. 

Art.  1068. — By  seals,  in  matters  of  succession,  is  understood  the 
placing  of  the  judge's  seal  on  the  efi"ects  of  a  succession  for  the  purpose 
of  preserving  them,  and  for  the  interest  of  third  persons. 

Art.  1069. — The  seals  must  be  placed  on  the  bureaus,  coifers,  ar- 
moires  and  other  things,  which  contain  the  effects  and  papers  of  the  de- 
ceased, and  on  the  doors  of  the  apartments  which  contain  these  things, 
so  that  they  cannot  be  opened  without  tearing  ofi",  breaking  or  altering 
the  seals. 

Art.  1070. — The  seals,  after  the  decease,  must  be  affixed  by  a  judge 
or  justice  of  the  peace  within  the  limits  of  his  jurisdiction,  and  may  be 
affixed  by  him  either  as  ex  officio,  or  at  the  request  of  the  parties. 

Art.  1071. — The  seals  are  affixed  at  the  request  of  the  parties, 
when  a  widow,  a  testamentary  executor  or  any  other  person  who  pre- 
tends to  have  any  interest  in  a  succession  or  community  of  property,  re- 
quires it. 

Art.  1072.— The  seals  are  affixed  ex  officio,  when  the  presumptive 
heirs  of  the  deceased  do  not  all  in  reside  in  the  place  where  he  died,  or 
if  any  of  them  happen  to  be  absent. 

Art.  1073. — Whoever  has  knowledge  of  the  death  of  a  person, 
whose  heirs  are  not  all  in  the  place,  is  bound  to  give  immediate  notice 
thereof  to  any  judge  or  justice  of  the  vicinage. 

Art.  1074. — If  a  person  dies  in  the  house  of  any  one  who  keeps 
boarders  or  gives  lodging  for  money,  and  the  latter  neglects  or  delays  to 
give  notice  of  the  decease,  as  is  prescribed  in  the  preceding  article,  he 
shall  be  responsible  for  all  damages  which  may  be  caused  to  any  one  who 
may  be  affected  by  this  negligence,  besides  the  punishment  which  is  or 
may  be  pronounced  by  the  Penal  Code  in  such  case. 

It  is  the   same  with   a  captain  or  master  of  a  vessel  or  other  craft, 


151  OF  SUCCESSION'S.  15i 

who  neglects  to  give  notice,  as  before  stated,  of  the  death  of  a  person 
deceased  on  board  his  vessel  or  craft. 

Art.  1075. — It  is  the  duty  of  every  judge  or  justice  of  the  peace, 
who  knows  of  himself,  or  who  shall  receive  information  of  the  death  of 
any  one,  all  of  whose  heirs  are  not  in  the  place,  to  go  immediately  to  the 
house  where  the  deceased  resided,  and  to  affix  the  seals  in  the  presence 
of  two  witnesses  of  the  neighborhood,  who  know  to  sign,  if  such  can  be 
found. 

Art.  1076. — The  judge  or  justice  of  the  peace  who  affixes  the  seals, 
must  not  himself  make,  and  must  prohibit  the  persons  present  from 
making,  any  search  or  examination  among  the  papers  or  eifects  of  the 
deceased,  even  under  the  pretext  of  searching  for  a  will. 

Art.  1077. — The  judge  or  justice  of  the  peace  who  affixes  the  seals, 
ought  to  shut  up  in  the  apartments,  the  doors  and  windows  of  which  he 
must  seal,  all  the  movables  and  effects  which  can  be  removed,  and  shall 
only  leave  out  those  for  which  the  family  of  the  deceased,  if  he  has  left 
any,  had  an  absolute  need  for  their  use,  of  which  he  shall  make  a  list  at 
the  end  of  his  jnocH-vcrhal  of  the  affixing  of  the  seals. 

Art.  1078. — Prords-verbal  of  the  affixing  of  the  seals  must  be  re- 
duced to  writing  in  English  or  in  French,  on  the  spot  where  the  seals 
are  fixed,  and  without  leaving  it.  The  2J)occ s-verbal  must  contain  the 
day  of  the  month  and  year  in  which  it  is  made,  and  be  signed  by  the 
judge  and  the  witnesses ;  if  any  of  the  latter  do  not  know  how  to  sign, 
mention  of  it  must  be  made  in  the  act. 

Art.  1079. — The  judge  or  justice  of  the  peace  who  affixes  the  seals, 
shall  appoiut  a  guardian  at  the  expense  of  the  succession,  to  take  care 
of  the  seals  and  of  the  effects  of  which  an  account  is  taken  at  the  end 
of  the  j)'>'oce,s-vcrbal  of  the  affixing  of  the  seals  ;  the  guardian  must  be 
a  person  domiciliated  in  the  place  where  the  inventory  is  taken. 

The  judge,  when  he  retires,  must  take  with  him  the  keys  of  all  the 
things  and  apartments  upon  which  the  seals  have  been  affixed. 

Art.  1080. — If  it  be  a  justice  of  the  peace  who  has  affixed  the  seals 
he  must  give  immediate  information  of  it  to  the  judge  of  the  place,  and 
deliver  to  him  the  inocis-vcrbal  of  the  affixing  of  the  seals,  together 
with  the  keys  of  the  things  and  apartments  upon  which  he  has  affixed 
the  seals. 

Art.  1081. — If  in  the  ten  days  which  follow  the  affixing  of  the  seals, 
an  heir  presents  himself,  who  demands  that  the  seals  be  raised,  the 
judge  shall  order  it  to  be  done,  if  it  is  proved  to  him  that  all  the  heirs 
of  the  deceased  are  present  or  represented  in  the  State. 

1  L.  49. 

Art.  1082. — If  it  be  a  testamentary  executor  who  demands  that  the 
seals  be  raised,  the  judge  ought  not  to  grant  his  demand,  until  he  is 
satisfied  that  the  executor  has  caiised  himself  to  be  recognized  as  such  by 
the  competent  tribunal,  and  must  oblige  him  to  cause  V^  be  made  an  in- 
ventory of  the  effects  on  which  the  seals  have  been  affixed,  in  the  same 
manner  as  he  is  obliged  to  make  the  inventory  of  the  other  effects  of 
the  succession,  according  to  the  dispositions  in  this  respect  contained  in 
the  title  which  treats  of  iviJh. 

1  L.  49. 


152  OF  SUCCESSIONS. 

Art.  1083. — If,  at  the  expiration  of  the  ten  clays,  no  one  presents 
himself  who  has  a  right  to  demand  the  seals  to  be  raised,  or  if  those 
who  do  present  themselves,  do  not  comply  with  the  conditions  mentioueN 
in  the  preceding  articles,  the  judge  of  the  place  shall  raise  them,  and 
make  an  inventory  of  the  effects  contained  under  them,  and  of  the  other 
effects  of  the  succession  within  his  jui'isdiction,  in  the  manner  and  form 
prescribed  in  the  following  section. 

Art.  1084. — The  raising  of  the  seals  is  done  by  the  judge  of  the 
place,  or  justice  of  the  peace  appointed  by  him  to  that  effect,  in  the 
presence  of  two  witnesses  of  the  vicinage,  in  the  same  manner  as  for  the 
affixing  of  the  seals. 

Art.  1085. — If  the  seals  are  found  sound  and  entire,  the  judge  or 
justice  of  the  peace,  after  recognizing  them,  shall  take  them  off,  shall 
discharge  the  guardian,  and  deliver  the  effects  to  the  heir  or  executor 
havino-  a  rig-ht  to  receive  them  as  is  before  said. 

Art.  1086. — If,  on  the  contrary,  the  judge  or  justice  of  the  peace 
finds  that  the  seals  have  been  broken  maliciously  or  altered,  he  shall 
make  mention  of  this  circumstance  in  his  proces-verbal^  and  of  the  de- 
claration which  the  guardian  may  have  made  of  his  knowledge  of  the 
causes  of  the  seals  being  altered  oi-  broken. 

Art.  1087. — Whoever  maliciously  breaks  or  alters  seals  which  have 
been  affixed  in  the  manner  before  described,  on  the  effects  of  a  succes- 
sion, shall  be  liable  for  all  damages  which  may  be  caused  thereby,  be- 
sides being  exposed  to  the  punishment  prescribed  by  the  penal  laws 


Section  II. — Of  the  Achninistratiofi  of  Vacant  and  Intestate  Succes 

sions. 

§  1. —  General  Dispositions. 

Art.  1088. — A  succession  is  called  vacant  when  no  one  claims 
it,  or  when  all  the  heirs  are  unknown,  or  when  all  the  known  heirs  to 
it  have  renounced  it. 

9  L.  135 ;  1  A.  181 ;  See  11  L.  409 ;  12  E.  258. 

Art.  1089. — A  succession  is  called  intestate  when  the  deceased  has 
left  no  will,  or  when  his  will  has  been  revoked  or  annulled  as  irregular. 

Therefore  the  heirs  to  whom  a  succession  has  fallen  by  the  effects  of 
law  only,  are  called  heirs  ab  intestato. 

15  L.  52T. 

Art.  1090. — Vacant  successions  are  managed  by  administrators 
appointed  by  courts,  under  the  name  of  curators  of  vacant  successions. 

See  11  L.  409  ;  2  E.  443. 

Art.  1091. — intestate  successions,  the  heirs  of  which  or  some  of 
them  are  absent  and  not  represented  in  the  State  excepting  they  are 
minors,  are  managed  by  administrators  appointed  by  courts,  under  the 
name  of  cur  aims  of  absent  lieirs. 

11  L.  409;  15  L.  527. 


153  OF  SUCCESSIONS.  153 

Art.  1092. — But  if  tlie  heirs,  who  are  absent,  are  minors,  the  ap- 
pointment of  a  curator,  as  prescribed  in  the  preceding  article,  does  not 
take  place,  and  the  succession  is  administered  by  the  tutor  or  curator 
ad  bona  who  must  be  appointed  for  the  minor  according  to  law,  under 
the  modifications  established  in  the  section  of  this  title  relating  to  the 
benefit  of  inventory. 

3  L.  4S3;  7  L.  539;  See  11  L.  409  ;  15  L.  527. 


^  2. —  Of  the  Inventory  of    Vacant  and  Intestate  Succt^sions  subject 
to  Administration. 

Art.  1093. — If,  ten  days  after  the  opening  of  a  succession,  no  one 
presents  himself  having  the  right  to  claim  the  possession  of  it,  or  if  it 
be  shown  that  all  the  heirs  of  the  deceased,  or  a  part  of  them,  are  ab- 
sent from  and  not  represented  in  the  State,  it  is  the  duty  of  the  judge 
of  the  place  where  the  deceased  has  left  property,  after  having  raised 
the  seals,  if  any  have  been  affixed,  to  make  an  inventory  of  the  effects 
of  the  deceased  found  within  his  jurisdiction,  in  presence  of  two  wit- 
nesses and  counsel  appointed  by  him  to  represent  the  absent  heirs. 

Art.  1094. — If  any  of  the  heirs  are  present  or  represented  in  the 
State,  or  if  the  deceased  had  a  community  of  goods  or  commercial  part- 
nership with  any  one,  the  judge  who  makes  the  inventor}'-,  is  bound  to 
notify  these  heirs  or  partners,  or  their  attorneys  in  fact  to  attend,  if 
they  think  proper,  if  they  do  not  reside  more  than  thirty  miles  from  the 
place  where  the  inventory  is  to  be  made. 

Art.  1095. — If,  by  an  express  clause  in  the  act  of  partnership  which 
the  deceased  has  entered  into,  it  be  stipulated  that  the  partnership 
should  continue,  notwithstanding  the  death  of  one  of  the  partners,  be 
tween  the  surviving  partner  or  partners  and  the  heirs  of  the  deceased, 
this  agreement  shall  not  prevent  the  judge  from  making  an  inventory  of 
the  partnership's  effects ;  but  he  must  leave  them  in  the  possession  of 
the  surviving  partner  or  partners,  without  requiring  from  them  any  se- 
curity for  the  administration. 

See  1  L.  384. 

Art.  109G. — Besides  the  formalities  before  described,  the  inventory 
of  the  effects  of  vacant  successions,  or  those  of  which  the  heirs  are  ab- 
sent and  not  represented,  must  be  clothed  with  all  the  forms  which  are 
prescribed  for  public  inventories. 

Art.  1097. — Public  inventories  are  those  which  are  accompanied 
with  the  solemnities  or  formalities  of  the  law,  and  which  are  made  by  a 
judge  or  by  a  notai-y  duly  appointed. 

1  L.  49. 

Art.  1098. — The  public  inventory  ought  to  include  : 

1.  An  exact  and  particular  description  of  all  the  effects  movable  and 
immovable  of  the  succession,  which  arc  found  in  the  place  where  the  in- 
ventory is  made,  and  the  estimate  which  is  made  of  each,  by  appraisers 
who  must  be  appointed  and  sworn  by  the  judge  or  notary  who  makes  the 
inventory ; 

2.  An  exact  and  particular  description  of  all  the  titles,  books,  cre- 
dits and  other  important  papers  found  in  the  succession,  together  with 


154  OF  SUCCESSIONS. 

the  name,  surname,  and  place  of  each  debtor,  if  he  be  known,  as  well  aa 
the  letter,  number,  and  particular  mark  under  which  each  of  these  pa- 
pers thus  inventoried  has  been  numbered  and  marked  by  the  judge  or 
notary ; 

3.  A  description  and  enumeration  of  the  different  bundles,  in  which 
the  other  papers  have  been  put  up  by  the  judge  or  notary,  such  as  let- 
ters and  others,  following,  as  much  as  possible,  the  order  of  their  dates, 
and  mentioning  the  letter,  number,  or  mark  under  which  each  of  these 
bundles,  thus  inventoried,  have  been  numbered  and  marked  by  the 
judge  or  the  notary,  as  well  as  the  number  of  papers  contained  in  each 
bundle. 

5  L.  434 ;  12  E.  155. 

Art.  1099. — If  there  are  in  the  succession  eitects  which  belong  en- 
tirely to  the  deceased,  and  others  which  belong  to  him  in  part  only,  the 
judge  or  notary  must  make  this  distinction  in  the  inventory. 

He  must  also  make  mention  of  the  effects  and  property  which  are 
claimed  by  third  persons,  as  having  been  intrusted  to  the  deceased  to 
keep  on  deposit,  consignment,  or  otherwise,  all  of  which  must  be  esti- 
mated with  the  effects  of  the  succession,  though  they  can  be  taken  out 
of  the  inventory,  if  the  claim  to  them  is  established. 

17  L.  238 ;  See  1  L.  179. 

Ae-t.  1100. — If  there  be  due  to  the  deceased  any  debts  by  verbal 
obligations,  or  the  titles  of  which  are  not  known  in  the  succession  at  the 
time  of  the  inventory,  the  judge  or  notary  is  bound  to  include  them  in 
the  inventory  among  the  active  debts  left  by  the  deceased,  if  their 
existence  has  been  proved  to  him,  either  by  the  titles  which  may  be 
found  elsewhere  than  among  the  effects  of  the  succession,  or  by  the 
testimony  of  witnesses,  if  the  obligations  have  been  verbal. 

Art.  1101. — The  public  inventory,  in  fine,  must  be  clothed  with  the 
following  forms : 

1.  Mention  mvist  be  paid  therein  of  the  name,  surname,  quality,  and 
place  of  residence  of  the  judge  or  notary  who  makes  the  inventory,  of 
the  witnesses  who  have  assisted,  of  the  appraisers  who  have  valued  the 
property,  and  of  the  parties,  if  any,  at  whose  instance  the  inventory  is 
made. 

2.  Mention  must  be  made  of  the  place  where  the  inventory  is  made, 
of  the  day,  month,  and  year  in  which  it  is  commenced  and  finished  ;  and 
if  the  judge  or  notary  has  employed  several  days,  sittings  or  vacations  to 
make  the  inventory,  the  date  of  each  must  be  mentioned. 

3.  The  inventory  must  be  terminated  by  a  recapitulation  of  all  the 
sums  and  amounts  therein  contained,  so  that  the  whole  amount  of  the 
effects  of  the  succession  may  be  known. 

4.  Minutes  must  be  kept  of  the  inventory  and  be  signed  at  each 
vacation,  and  at  the  end  of  the  act,  by  the  judge  or  notary  who  makes 
it,  by  the  witnesses  and  party,  if  there  be  any  ;  if  not  mention  must  be 
made  of  the  causes  for  which  the  witnesses  and  parties  have  not  signed. 

11  L.  149  ;  See  1  L.  49. 

Art.  1102. — The  witnesses  assisting  at  public  inventories  must  be 
males  of  age,  and  domiciliated  in  the  place  where  the  inventories  are 
made. 

Art.    1103. — The    inventories    of    successions  by  notaries  public 


155  OF  SUCCESSIONS  155 

must  be  registered  with  the  judge  of  the  place  of  the  opening  of  the 
succession  ;  and  until  then  they  are  not  admitted  as  proof  in  courts  of 
justice. 

Art.  1104. — When  the  deceased  who  has  left  a  vacant  succession 
or  intestate  heirs,  all  or  part  of  whom  are  absent  from,  and  not  repre- 
sented in,  the  State,  has  left  effects  in  different  places,  the  judges  who 
have  made  inventories  of  these  effects  within  their  respective  jurisdic- 
tions, are  bound  to  address  authentic  copies  tliereof  without  delay  to 
the  place  where  the  succession  is  opened ;  the  expenses  for  these  inven- 
tories and  copies  shall  be  paid  from  the  first  moneys  realized. from  the 
succession. 


<^3. — Of  the  Ajipointment  of  Curators  to  Successions,  ami  of  the  Se- 
curity they  are  bound  to  give. 

Art.  11 05. — When  any  one  dies  leaving  a  vacant  succession  or  heirs 
absent  from,  and  not  represented  in,  the  State,  all  actions  which  could 
have  been  brought  against  the  deceased,  must  be  commenced  or  accu- 
mulated, and  prosecuted  before  the  judge  of  the  place  where  the  suc- 
cession is  opened,  and  brought  against  the  curator  appointed  by  the 
judge,  as  is  hereafter  prescribed. 

10  E.  39a, 

Art.  1106. — He  who  claims  the  curatorship  of  a  vacant  succession, 
or  one  of  which  the  heirs  or  part  of  them  are  absent  and  not  represent- 
ed, must  present  his  petition  to  that  effect  to  the  judge  of  the  place 
where  the  succession  is  opened. 

10  E.  896. 

Art.  1107. — The  judge  on  receiving  this  request  must  give  public 
notice  thereof,  with  notice  to  all  those  who  wish  to  make  opposition 
thereto,  to  do  it  in  ten  days  from  the  date  of  such  notice. 

5  N.  S.  505. 

Art.  1108. — The  public  notice  to  be  given  in  this  case,  as  in  all 
other  cases  in  which  the  law  requires  it  to  be  given,  must  be  by  adver- 
tisement in  English  and  French,  posted  at  the  doors  of  the  church  of  the 
place  or  of  the  court-house  where  the  judge  who  has  given  the  order, 
holds  his  court.  This  is  what  is  understood  by  advertisements  at  the 
usual  places,  words  frequently  made  use  of  in  the  dispositions  of  the 
law. 

Art.  1109. — Besides  these  advertisements,  notice  must  be  inserted 
in  English  and  French,  to  wit :  For  New  Orleans  and  places  not  more 
than  one  hundred  miles  distant  therefrom,  in  two  newspapers  published 
there,  and  for  places  beyond  that  distance,  in  the  newspaper,  if  any 
there  be,  which  is  published,  at  a  distance  not  exceeding  fifty  miles 
from  the  place  where  the  judge  who  has  given  the  order,  holds  his  ses- 
sions. 

Stat.  1853,  No.  255;  7  L.  395. 

Art.  1110. — When  the  advertisements  shall  be  published  in  the 
newspapers,  as  prescribed  in  the  prcceding'article,  they  shall  be  inserted 
three  different  days  before  the  expiration  of  the  term  fixed  by  law,  if  the 
term  be  of  ten  days,  unless  it  be  in  places  where  the  newspapers  do  not 


156  OF  SUCCESSIONS. 

appear  often  enough  to  repeat  the  advertisement  as  many  times  as  is 
required  by  this  article,  in  which  case  it  will  suffice  if  the  advertisement 
be  inserted  as  often  as  the  gazette  appears  during  that  time. 

For  those  advertisements,  for  which  the  term  of  thirty  days  is  fixed, 
it  suffices  if  they  are  published  in  the  newspapers,  as  above  prescribed, 
once  a  week  during  that  time. 

4  L.  383. 

Art.  1111. — Whoever  wishes  to  make  opposition  to  a  demand  for 
the  curatorship  of  a  vacant  succession  or  of  absent  heirs,  must  make  it 
in  ten  days  from  the  publication  of  the  notice  of  the  demand ;  other- 
wise it  cannot  be  admitted. 

4  L.  4T1 ;  10  E.  896  ;  4  A.  25. 

Art.  1 1 12. — The  opposition  must  be  written  and  signed  by  the  par- 
ty making  it,  or  his  attorney,  and  delivered  at  the  office  of  the  judge 
who  has  received  the  demand  for  the  curatorship ;  it  shall  contain  a 
brief  statement  of  the  reasons  for  which  the  party  opposing  claims  the 
curatorship  in  preference  to  the  party  demanding  it. 

1  K.  461 ;  Sec  10  R.  193. 

Art.  1113. — The  judge  shall  determine,  in  as  summary  a  manner 
as  possible,  on  this  opposition. 

But  though  his  decision  be  subject  to  an  appeal,  the  curator  appoint- 
ed by  the  judge  may  act  as  such,  notwithstanding  an  appeal,  if  he  give 
security,  as  is  hereafter  prescribed  ;  and  all  the  legal  acts  done  in  his 
capacity  shall  be  valid,  although  his  appointment  be  annulled  on  the 
appeal. 

Art.  1114. — In  contestations  concerning  the  curatorship  of  vacant 
successions  and  those  of  absent  heirs,  the  judge  shall  grant  the  curator- 
ship  : 

To  the  surviving  partner  of  the  deceased,  in  preference  to  the  heir 
present  or  represented,  unless  the  partnership  has  been  a  commercial 
one. 

To  the  heir  present  or  represented,  in  preference  to  the  surviving 
husband  or  wife,  if  the  deceased  was  married. 

To  the  surviving  husband  or  wife  in  preference  to  the  creditors  of 
the  deceased ;  to  the  creditors,  in  preference  to  those  who  are  not. 

4  L.  143,  569;  T  L.  395;  13  L.  7T;  15  L.  527;  IS  L.  494;  2  A.  9T;  3  A.  261 ;  5  A.  27. 

Art.  1 115. — The  partner  or  partners  of  a  commercial  house,  having 
accounts  to  render  to  the  heirs  of  their  deceased  partner,  can  in  no  case 
be  appointed  curators  to  the  vacant  succession  or  that  of  the  absent 
heirs  of  the  deceased.  It  must  be  given  to  a  third  person,  the  surviv- 
ing partner  or  partners  having  the  right  to  claim  the  privilege  of  liqui- 
dating the  partnership  concerns,  as  is  hereafter  established. 

3  L.  471. 

Art.  1116. — If  several  persons  claim  the  curatorship,  the  judge  is 
bound,  except  in  those  successions  which  do  not  exceed  three  thousand 
dollars  in  value,  to  give  it  to  two  of  them  and  no  more,  provided  they 
have  the  requisite  qualifications,  and  offer  sufficient  security. 

6L.  443;  11  L.  2S9;  2  A.  97. 

Art.  1117. — In  the  choice  to  be  made  among  several  persons,  why 


157  OF  SUCCESSIONS.  157 

have  equal  rights  to  the  curatorship,  but  who  have  claimed  it  at  differ- 
ent times,  the  judge  must  give  it  to  him  or  those  who  have  first  pre- 
sented their  demands,  if  they  offer  the  necessary  security. 

3L.471;  11L.2S9;  2  A.  97. 

Art.  1 1 1 8. — In  contestations  relating  to  the  curatorship  of  succes 
sions,  the  parties  who  have  failed  in  their  demands  or  oppositions,  sup 
port  the  expense  of  them ;  but  the  costs  incurred  by  the  curator  to 
cause  himself  to  be  appointed,  arc  at  the  charge  of  the  succession. 

18  L.  493. 

Art.  1 119. — The  curator  of  a  vacant  succession  or  of  absent  heirs, 
before  he  enters  on  the  performance  of  his  duties,  must  take  an  oath, 
before  the  judge  who  has  appointed  him,  well  and  faithfully  to  discharge 
his  duties  as  such,  and  give  good  and  sufficient  security  for  the  fidelity 
of  his  administration. 

8  N.  S.  581 ;  11  L.  149 ;  1  A.  75;  3  A.  150;  See  12  R.  233. 

Art.  1 120. — The  security  to  be  given  by  a  curator  of  a  vacant  suc- 
cession or  absent  heirs,  when  all  the  heirs  are  absent  from  and  not  rep- 
resented in  the  State,  is  of  one-fourth  over  and  above  the  amount  of 
the  inventory,  bad  debts  deducted. 

4  N.  S.  481 ;  See  12  K.  238. 

Art.  Ifel. — The  security  to  be  given  by  a  curator  of  absei  fc  heirs, 
when  he  only  represents  a  part  of  the  heirs  of  the  deceased,  is  of  one- 
fourth  over  and  above  the  amount  of  the  portion  coming  to  these  heirs, 
according  to  the  inventory  of  the  succession,  bad  debts  deducted. 

Art.  1 1 22. — No  greater  security  can  be  required  of  the  curator  of 
a  vacant  succession  or  of  absent  heirs,  than  is  required  in  the  two  prece- 
ding articles,  unless  new  effects  are  discovered,  which  had  not  been  in- 
cluded in  the  inventory. 

Art.  1123. — The  curator  of  a  vacant  succession  or  of  absent  heirs 
may,  instead  of  the  security  required  of  him,  give  a  special  mortgage  on 
real  estate  belonging  to  him,  of  a  sufficient  value,  which  is  unincumbered 
and  situated  within  the  limits  of  the  jurisdiction  of  the  judge  who  has 
appointed  him. 

Bee  7  N.  S.  294. 

Art.  1124. — The  property  of  the  curators  of  vacant  successions  and 
of  absent  heirs,  and  that  of  their  securities  shall  be  no  longer  subject  to 
any  general  or  tacit  mortgage  for  the  fidelity  of  their  administration. 

iStat.  iOih  March,  1834,  p.  113. — ^  5.  Hereafter  no  notary,  parish 
judge,  or  register  of  mortgages,  in  making  a  certificate  of  mortgage, 
shall  mention  in  his  certificate  the  fact  of  registration  of  the  bond  of 
any  administrator,  curator  of  vacant  succession,  or  of  absent  heirs.  The 
proper  construction  of  the  article  one  thousand  one  hundred  and  twenty- 
four  of  the  Civil  Code  not  giving  to  such  bonds  when  registered  the 
force  of  a  mortgage. 

Art.  1 125. — If  any  one,  after  having  demanded  and  obtained  the 
curatorship  of  a  vacant  succession  or  of  absent  heirs,  permits  three 


158  OF  SUCCESSIONS. 

days  to  elapse  after  his  appointment,  without  giving  the  security  or 
special  mortgage  required  by  law,  the  judge  shall,  on  motion  of  the 
counsel  of  the  absent  heirs,  duly  notified  to  the  curator,  declare  him 
divested  of  his  curatorship,  and  fill  the  vacancy  in  the  same  manner  as 
curators  are  appointed. 

§  4. —  Of  the  Duties  and  Powers  of  Curators  of  Vacant  Successions  and  of 

Absent  Heirs. 

Art.  1 126. — Every  curator  of  a  vacant  succession  or  of  absent  heirs 
is  bound,  within  ten  days  after  his  appointment,  to  give  public  notice  to 
the  creditors  of  the  succession,  that  they  may  make  themselves  known, 
and  present  an  account  of  their  respective  claims  and  the  titles  by  which 
they  are  established. 

19  L.  462. 

Art.  1127. — Six  months  after  his  nomination,  if  the  heirs  do  not 
appear  in  person  or  by  attorney,  the  curator  is  bound  to  publish,  in  two 
of  the  newspapers  printed  at  New  Orleans,  in  English  and  French,  a 
notice  of  the  death  of  the  deceased,  whose  succession  he  administers,  ma- 
king mention  of  the  name  and  surname  of  the  deceased,  of  his  place  of 
birth,  if  it  be  known,  of  the  place  of  his  decease,  and  of  the  opening  of 
his  succession ;  and  the  curator  shall  subjoin  to  this  notice  his  own  name 
and  address. 

Art.  1128. — If  the  deceased  was  in  community  or  partnership  with 
any  one  who  has  survived  him,  the  curator  of  the  vacant  qjiccession  or 
of  absent  heirs  is  bound,  immediately  after  his  appointment,  to  sue  for  a 
partition,  in  order  that  the  part  which  belonged  to  the  deceased  in  the 
community  or  partnership  property,  be  ascertained. 

19  L.  402 ;  3  K.  262. 

Art.  1 129. — When  any  one  of  the  heirs  of  the  deceased  is  present 
or  represented  in  the  State,  the  curator  of  the  heirs  who  are  absent  from 
and  not  represented  in  the  State,  is  bound  in  the  same  manner  as  is  pre- 
scribed in  the  preceding  article,  to  sue  for  a  partition  in  order  to  ascer- 
tain the  part  coming  to  the  heirs  represented  by  him. 

2  A.  466. 

Art.  1130. — Suits  for  partition  must  be  instituted  before  the  judge 
of  the  place  where  the  succession  is  opened,  and  the  co-proprietors  and 
partners  of  the  deceased,  as  well  as  his  heirs,  present  and  represented, 
must  be  cited  to  appear  before  the  judge  in  such  suits,  though  their 
domicil  or  ordinary  place  of  residence  be  out  of  the  jurisdiction  of  the 
judge. 

Art.  1131. — If  there  be  a  commercial  partnership,  in  which  the  de- 
ceased was  concerned,  the  surviving  partner,  after  the  portion  of  the  de- 
ceased in  thfe  partnership  effects  has  been  ascertained,  and  the  estimate 
of  it  made  on  the  inventory,  shall  have  a  right  to  require  that  this  por- 
tion remain  with  his  own,  in  order  that  the  whole  may  be  disposed  of 
for  the  common  profit  in  the  ordinary  course  of  trade,  and  the  proceeds 
applied,  as  far  as  is  necessary,  to  the  payment  of  the  partnership  debts. 

3  L.  274,  S5T;  T  L.  194;  3  R.  44;  See  2  L.  188. 


i 


159  OF  SUCCESSIONS.  159 

Art.  1132  — This  right  cannot  be  refused  to  the  surviving  partner, 
if  the  succession  of  the  deceased  partner  is  vacant,  or  if  all  his  heirs  are 
absent  and  not  represented ;  but  the  surviving  partner  is  bound  to  j^ve 
security  to  the  curator  of  the  vacant  succession,  or  of  absent  heirs,  to 
the  amount  of  one-fourth  over  and  above  the  estimated  value  of  the  por- 
tion which  was  coming  to  the  deceased  from  the  partnership  property, 
according  to  the  inventory. 

3  L.  274,  357;  7  L.  194;  3  E.  44;  11  L.  195;  See  2  L.  1S8. 

Art.  1133. — The  surviving  partner,  who  has  thus  obtained  the  ad- 
ministration of  the  partnership  eflFects,  has  but  one  year  from  the  day 
this  administration  has  been  given  to  him,  to  sell  those  effects  according 
to  the  usual  course  of  trade,  and  to  settle  the  partnership  concerns. 

After  this  time,  he  is  bound  to  render  an  account  of  his  administra- 
tion to  the  curator  of  the  vacant  succession,  or  of  the  absent  heirs  of  his 
deceased  partner,  and  to  pay  to  him  the  part  due  to  the  heirs  on  the 
settleinent  of  the  partnership  concerns. 

Art.  1134. — During  the  time  the  administration  of  the  surviving 
partner  continues,  tlie  curator  of  the  vacant  succession  or  of  the  absent 
heirs  of  the  deceased  has  a  right  to  demand  from  him,  from  time  to  time, 
an  account  of  his  situation,  and  to  exercise  over  the  partnersliip  affairs 
the  same  superintendence,  which  the  deceased,  during  his"  life,  could  have 
exercised. 

3  L.  274 

Art.  1135. — The  Surviving  partner,  who  has  thus  administered  the 
partnership  concerns  and  liquidated  them,  has  no  right  to  any  commis- 
sion therefor. 

But  lawful  and  necessary  expenses  incurred  for  the  advantage  of  the 
partnership,  during  this  administration,  are  borne  by  the  succession  in 
proportion  to  the  interest  of  the  succession  in  the  partnership. 

Art.  1 1 36. — If  any  one  of  the  heirs  of  the  deceased  partner  is  pres- 
ent or  represented  in  the  State,  the  surviving  partner  has  no  right  to 
retain  his  part  of  the  partnership  property,  no  more  than  the  parts  of 
the  other  heirs  who  are  absent,  if  the  heir  opposes  it  and  accepts  the 
succession  purely  and  simply ;  unless  in  the  act  of  partnership  it  be  stipu- 
lated that  the  surviving  partner  shall  be  intrusted  with  the  liquidation 
of  the  partnership  concerns,  for  in  this  case,  such  a  stipulation  must  be 
carried  into  effect. 

1  L.  884. 

Art.  1137. — Except  in  the  case  in  which  the  surviving  partner  of  a 
commercial  house  obtains  the  administration  of  the  partnership  property, 
as  is  established  in  the  preceding  articles,  the  property,  which  the  de- 
ceased possessed  in  common  or  in  partnership  with  others,  must  be  di- 
vided, either  in  kind  or  by  sale,  as  the  judge,  before  whom  the  suit  for 
partition  is  brought,  may  order. 

3  K.  44 

Art.  1 138. — Whether  this  partition  be  made  in  kind  or  by  sale,  it 
must  be  made  in  the  manner  and  form  prescribed  in  the  laws  of  this  title, 
relative  to  judicial  partitions. 

Art.  1139. — Every  curator  of  vacant  successions  or  of  absent  heirs 
is  prohibited  from  purchasing  by  himself  or  by  means  of  a  third  person 


160  OF  SUCCESSIONS. 

any  property  movable  or  immovable  intrusted  to  his  administration, 
under  the  pain  of  nullity  and  responsibility  for  all  damages  caused 
thereby. 

Stat.  20  March,  1840,  p.  123.^^  1.  Nothing  contained  in  articles 
eleven  hundred  and  thirty-nine  and  seventeen  hundred  and  eighty-four 
of  the  Civil  Code  or  in  any  other  articles  of  the  Civil  Code  or  Code  of 
Practice,  shall  be  so  construed  as  "to  prevent  any  executor,  executrix,  ad- 
ministrator or  administratrix,  curator  or  curatrix  of  vacant  successions, 
from  purchasing  at  the  sale  of  the  effects  of  the  deceased  whose  estate 
they  may  respectively  represent  when  the  said  executor,  execiitrix,  ad- 
ministrator or  administratrix,  curator  or  curatrix  is  the  surviving  partner 
in  community  or  an  heir  or  legatee  of  the  said  deceased,  and  all  purcha- 
ses so  made  shall  be  considered  as  valid  and  binding  as  though  the  same 
had  been  made  by  any  disinterested  third  party  or  parties. 

^  2.  All  purchases  which  shall  have  been  heretofore  made  at  the 
sale  of  the  effects  of  the  succession  of  any  deceased  person,  by  the  ex- 
ecutor, executrix,  administratrix  or  administratrix,  curator  or  cura- 
trix of  said  deceased's  estate,  when  the  said  executor,  executrix,  ad- 
ministrator or  administratrix,  curator  or  curatrix  shall  have  been  the 
surviving  partner  in  community,  heir  or  legatee  of  the  said  deceased, 
shall  be  considered  as  valid  and  binding  as  though  the  same  had  been 
made  by  any  person  or  persons  legally  capable  of  contracting ;  Provided 
however,  that  any  person  or  persons  who  shall  wish  to  avail  tliemselves 
of  any  informality  in  said  sale  or  sales,  by  reason  of  the  incompetency 
or  legal  disability  resulting  from  the  incapacity  as  aforesaid,  of  the  per- 
son or  persons  having  purchased  so  to  purchase,  shall  be  allowed  to 
institute  action  to  set  aside  said  sale  or  sales  by  reason  of  said  incom- 
petency or  legal  disability  as  aforesaid,  resulting  from  the  incapacity  of 
the  person  or  persons  purchasing  so  to  purchase,  within  two  years  from 
the  date  of  the  passage  of  this  act. 

^  3.  No  exception  shall  lie  against  the  A^alidity  of  titles  to  property, 
real  or  personal,  so  acquired  as  aforesaid,  on  any  of  the  grounds  hereto- 
fore enumerated,  unless  it  shall  appear  to  the  court  before  whom  said 
exception  is  pleaded,  that  a  suit  or  suits  have  been  instituted  to  set  the 
same  aside  within  two  years  after  the  passage  of  this  act. 

^  4.  The  provisions  of  the  second  and  third  sections  of  this  act, 
shall  apply  and  have  full  force  against  minors,  interdicted  persons  and 
married  women,  saving  to  them  their  recourse  against  their  tutors,  cu- 
rators or  other  legal  representatives,  should  they  be  able  to  make  it  ap- 
pear that  they  have  suffered  any  loss  or  damage. 

14  L.  Ill ;  1  A.  129 ;  3  A.  533. 

Art.  1 140. — Every  curator  of  a  vacant  succession  or  of  absent  heirs 
is  bound  to  take  care  of  the  effects  intrusted  to  him  as  a  prudent  admin- 
istrator, and  to  render  an  exact  and  faithful  account  of  the  fruits  and 
revenues  they  produce.  He  is  responsible  for  all  damages  caused  by  his 
misconduct. 

19  L.  462. 

Art.  1141. — A  curator  of  a  vacant  succession  or  of  absent  heirs 
owes  no  interest  on  the  sums  of  money  in  his  hands,  belonging  to  the 
succession  which  he  administers,  but  he  is  forbidden  from  using  them  on 


161  OF  SUCCESSIONS.  16 » 

his  private  account,  under  the  pain  of  dismissal  and  responsibility  for 
all  damages  caused  thereby. 

3  L.  191 ;  3  A.  353. 

Art.  1142. — Curators  of  vacant  succession  and  of  absent  heirs  are 
bound  to  keep  a  book  containing  the  accounts"  of  their  administration, 
whicli  they  shall  cause  to  be  j'^'^'rojihcd  at  the  beginning  and  at  the  end, 
each  page  to  be  numbered  by  the  judge  who  has  appointed  them,  or  by 
his  clerk,  in  which  they  shall  state,  in  the  order  of  their  dates,  the  sums 
they  may  receive  or  pay  for  the  account  of  the  succession  they  adminis- 
ter, or  the  heir  they  represent ;  and  also  the  debts  which  the  succession 
owes,  according  to  their  best  information. 

Stat.  13  Mardi,  1837,  p.  95. — ^  3.  All  executors,  administrators, 
curators  and  syndics,  shall  deposit  all  moneys  heretofore  collected  by 
them  as  such,  and  all  the  moneys  hereafter  collected,  as  soon  as  the  same 
shall  come  into  their  hands,  in  one  of  the  chartered  banks  of  this  State 
or  in  one  of  their  branches  allowing  interest  on  deposits,  if  there  be  one 
in  the  parish,  and  shall  keep  a  bank  book  in  his  official  name  and  char- 
acter, and  shall  on  no  account  remove  or  withdraw  said  deposits  or  any 
part  thereof,  until  a  tableau  of  distribution  shall  be  homologated,  or  un- 
less ordered  by  a  competent  court,  and  then  only  to  pay  such  debts  as 
may  be  ordered  for  payment ;  and  if  any  executor,  administrator,  cura- 
tor of  a  vacant  succession  or  syndic,  shall  fail  to  comply  with  the  pro- 
visions of  this  section,  and  proof  shall  be  made  thereof  by  any  creditor 
or  other  person  interested,  which  proof  may  be  administered  on  simple 
motion  after  ten  days'  notice,  which  motion  may  be  filed  in  the  clerk's 
office  at  any  time,  then  such  executor,  administrator,  curator  or  syndic, 
shall  be  condemned  jointly  and  severally  with  his  security  or  securities, 
to  pay  to  the  use  of  the  estate  twenty  per  cent,  per  annum  interest,  on 
the  amount  not  so  deposited  or  withdrawn  without  order,  besides  all 
special  damage  suffered,  and  shall  be  dismissed  from  office  as  executor, 
administrator,  curator  or  syndic,  as  the  case  may  be. 

1^  4.  Any  creditor  or  other  person  interested,  may  at  the  regular  sit- 
tings of  the  courts  in  New  Orleans,  and  in  the  country,  as  well  during 
the  vacation  as  the  sitting  of  the  court  having  jurisdiction,  file  iu  the 
clerk's  office  a  motion  to  know  whether  any  executor,  administrator,  cu- 
rator or  syndic,  has  any  funds ;  and  such  executor,  administrator,  cura- 
tor or  syndic,  shall  be  bound  within  ten  days  to  file  a  true  statement  of 
his  account  with  the  bank  showing  the  amount  of  funds  collected  by 
him,  and  on  failure  so  to  do,  such  executor,  administrator,  curator  or 
syndic,  shall  be  dismissed  from  office,  and  pay  ten  per  cent,  per  annum 
interest,  on  any  sums  for  which  he  may  be  responsible. 

Art.  1143. — The  exhibition  of  these  books,  thus  kept  by  these  cu- 
rators, may  be  ordered  by  the  judge  who  has  appointed  them,  as  often 
as  he  shall  thinly  proper,  or  as  he  may  be  required  to  order  it  by  a  cre- 
ditor of  the  succession,  or  by  the  counsel  of  the  absent  heirs  of  the  de- 
ceased. 

Art.  1144. — The  curator  of  a  vacant  succession  or  of  absent  heirs, 
who  wishes  to  absent  himself  from  the  State  for  a  time  that  exceeds  the 
11 


162  OF  SUCCESSIONS. 

legal  term  of  liis  administration,  must  cause  his  place  to  be  filled  hy 
some  other,  and  render  an  account  of  his  administration  to  the  judge 
who  has  appointed  him ;  otherwise  he  may  be  compelled  to  give  security 
not  to  depart  without  rendering  his  account  and  paying  the  balance  due, 
if  there  be  any. 

10  L.  435;  17  L.  537. 

Art.  1 145. — The  curator,  who  only  wishes  to  be  absent  for  a  time, 
ought  not  to  lose  his  curatorship  on  that  account :  provided  he  leave 
with  some  person  residing  in  the  place,  where  the  succession  is  opened, 
his  general  and  special  power  of  attorney,  to  represent  him  in  all  the 
acts  of  his  administration  as  curator,  and  deposit  an  authentic  copy  of 
this  power  of  attorney,  before  his  departure,  in  the  office  of  the  judge 
who  has  appointed  him. 

Stat.  24thA2]ril,  1847,  p.  115.— -The  article  of  the  Civil  Code  eleven 
hundred  and  forty-five,  that  reads  as  follows,  to  wit :  "  The  cui-ator  who 
only  wishes  to  be  absent  for  a  time,  ought  not  to  lose  his  curatorship  on 
that  account ;  provided  he  leave  with  some  person  residing  in  the  place 
where  the  succession  is  opened,  his  general  and  special  power  of  attorney, 
to  represent  him  in  all  acts  of  his  administration  as  curator,  and  deposit 
an  authentic  copy  of  this  power  of  attorney  before  his  departure,  in  the 
office  of  the  judge  who  has  appointed  him,"  be  so  amended  as  to  read 
thus :  Curators,  administrators,  tutors  and  testamentary  executors,  who 
only  wish  to  be  absent  for  a  time,  ought  not  to  lose  their  administration 
of  said  successions  on  that  account ;  provided  they  leave  with  some  per- 
son residing  in  the  parish,  or  in  an  adjoining  parish,  where  the  succes- 
sion is  opened,  a  general  and  special  power  of  attorney  to  represent  them 
in  all  the  acts  of  their  administration  as  curator,  administrator,  tutor  and 
testamentary  executor,  and  deposit  an  authentic  copy  of  the  power  of 
attorney  before  his  departure,  in  the  office  of  the  recorder  of  mortgages 
in  and  for  the  parish  where  said  succession  has  been  oi^ened,  which  power 
of  attorney  shall  be  duly  registered. 

AiiT.  1146. — The  curators  of  vacant  successions  and  of  absent  heirs 
act  in  their  names  and  quality,  in  all  contracts  or  other  proceedings,  in 
which  the  succession  or  the  heirs  which  they  represent  are  interested, 
and  appear,  in  all  suits,  in  which  they  are  obliged  to  act  in  that  capacity, 
either  as  plaintifi's  or  as  defendants. 

Art.  1147. — The  powers  of  curators  of  vacant  successions  and  of 
absent  heirs,  when  the  latter  are  all  absent  from  and  not  represented  in 
the  State,  extend  to  all  the  effects  of  the  succession. 

Art.  1148. — The  powers  of  curators  of  absent  heirs,  who  only  rep- 
resent some  of  the  heirs  of  the  deceased,-  extend  only  to  the  portion 
which  come  to  these  heirs  by  the  partition  made  of  the  effects  of  the 
succession. 

Until  this  partition  is  made,  these  curators  have  no  other  power  over 
the  effects  of  the  succession  than  that  which  a  co-proprietor  has  over 
the  undivided  property  which  he  possesses  in  common  with  other  per- 
sons. 

10  E.  457. 


163  OF  SUCCESSIONS.  163 

§  5. —  Of  the  Causes  for  wJiich  a  Curator  of  a  Succession  may  he  dismissed  or 

superseded. 

Am.  1149. — The  curator  of  a  vacant  succession  or  of  absent  bcirs 
must  be  dismissed  by  the  judge  who  has  appointed  him : 

1.  If  he  is  unfaithful  in  his  administration,  or  if  it  be  proved  that 
he  has  made  use  of  moneys  intrusted  to  him  as  curator  for  his  privato 
account  ; 

2.  If  he  absent  himself  for  a  time  exceeding  the  legal  term  of  hia 
administration,  without  having  provided  for  his  place  being  filled  by  an- 
other, and  rendered  his  account; 

3.  If  he  absent  himself  for  a  time  from  the  State  without  having 
left  a  special  power  of  attorney  with  some  one  to  represent  him  in 
his  administration  as  curator,  and  the  succession  suffers  any  injury 
thereby  ; 

4.  If  the  judge  of  the  place  where  the  succession  is  opened,  orders 
him  to  produce  his  account  book,  which  he  ought  to  keep  for  the  suc- 
cession, and  ho  refuses  or  neglects  to  obey  this  order. 

2  L.  2Ge. 
Art.  1150. — The  curator  may  be  superseded  by  the  judge  who  has 
appointed  him : 

1.  If,  three  days  after  having  been  appointed  curator,  he  refuses  or 
neglects  to  give  the  security  required  of  him  by  law ; 

2.  If,  after  his  appointment,  he  has  failed  or  obtained  a  respite  from 
his  creditors ; 

3.  If,  in  his  administration,  he  commits  any  faults  which  prove  his 
incapacity  or  negligence. 

Art.  1161.  In  those  cases,  in  which  the  judge  shall  think  there  is 
reason  to  dismiss  or  supersede  a  curator  of  a  vacant  succession  or  of 
absent  heirs,  or  shall  be  required  to  dismiss  or  supersede  him  by  any 
party  interested,  he  is  bound  to  charge  the  counsel  of  the  absent  heirs 
to  institute  a  suit  to  that  eifcct  before  him,  and  the  counsel  is  bound  to 
institute  it  accordingly. 

The  decision  of  the  judge  on  this  question  is  subject  to  an  appeal, 
but  may  be  previously  executed  notwithstanding  the  appeal. 

2  L.  206  ;  10  E.  457. 

Ar-t.  1 1 52. — In  all  cases  of  appeal  to  the  supreme  court  from  the 
decisions  relating  to  the  administration  of  the  property  of  minors,  of  per- 
sons interdicted,  or  of  absent  persons,  the  amount  of  value  of  the  succes- 
sion or  of  the  property  administered,  shall  determine  whether  that  court 
has  jurisdiction  or  not. 

8  L.  416. 

§  6. — Of  the  Sale  of  the  Effects  and  of  the  Settlement  of  Succession*  adminis- 
tered ty  Curators. 

Art.  1 153. — When  there  are  in  a  vacant  succession,  or  a  succession 
in  which  the  heirs  or  part  of  them  are  absent  from  and  not  represented 
in  the  State,  movable  effects  which  arc  perishable  or  costly  to  keep,  the 
judge  of  the  place  where  the  succession  is  opened,  can,  before  a  curator 


164  OF  SUCCESSION'S 

is  appointed,  order  the  sale  of  them  iu  the  form  and  manner  hcreaftei 
prescribed. 

19  L.  4G3. 

Art.  1154. — The  curator  is  bound,  in  ton  days  after  his  appoint- 
ment, to  demand  that  all  the  remaining  movable  effects  and  all  the 
slaves  not  employed  in  the  cultivation  of  land  belonging  to  the  estate, 
found  in  the  succession  intrusted  to  his  administration,  be  sold. 

5  L.  4CS. 

Art.  1 155.— With  respect  to  real  estate  belonging  to  the  succession, 
and  slaves  employed  in  cultivating  it,  the  curator  is  bound  to  wait  thirty- 
days  after  his  appointment,  before  he  demands  the  sale  of  them,  in  order 
that  he  may  know,  from  the  information  he  may  get  concerning  the 
debts  of  the  succession,  if  it  be  necessary  to  sell  them  in  order  to  pay 
the  debts. 

10  E.  396 ;  See  11  L.  149. 

Art.  1156. — At  the  expiration  of  the  thirty  days,  if  the  amount  of 
debts  known  is  such  that  it  is  necessary  to  sell  the  whole  or  a  part  of 
the  real  estate  and  slaves  employed  in  agriculture,  which  belong  to  the 
succession,  the  c.urator  shall  present  his  petition  to  the  judge  who  has 
appointed  him,  to  obtain  an  order  for  the  sale  of  this  property,  or  of 
such  a  part  of  it  as  may  be  necessary  to  pay  the  debts  of  the  succes- 
sion. 

10  E.  S9G. 

Art.  1157. — This  petition  of  the  curator  must  be  notified  to  the 
counsel  of  the  absent  heirs,  and  the  judge,  after  having  heard  him,  shall 
order  the  sale  of  all  or  such  part  of  the  real  estate  or  of  the  slaves  em- 
ployed in  agriculture,  which  belong  to  the  succession,  as  may  appear  to 
him  necessary  in  order  to  discharge  the  debts ;  and  if  the  sale  of  the 
whole  is  not  indispensable  for  this  purpose,  he  shall  order  the  sale  of  the 
slaves  in  preference  to  that  of  the  real  estate. 

2  A.  966. 

Art.  1 158. — If  it  is  not  necessary  to  sell  the  property  and  the  slaves 
engaged  in  agriculture,  belonging  to  the  succession,  in  order  to  pay  the 
debts,  they  muist  be  preserved,  and  administered  by  the  curator  for  the 
account  of  the  absent  heirs,  until  they  present  themselves  or  send  their 
powers  of  attorney,  or  until  the  expiration  of  the  time  when  the  law  re- 
quires them  to  be  sold,  as  is  prescribed  hereafter. 

Art.  1159. — In  all  eases  in  which  the  sale  is  ordered  of  property 
belonging  to  vacant  successions  or  to  those  of  which  anji-  of  the  heirs 
are  absent  from  and  not  represented  in  the  State,  the  sale  shall  be  made 
at  public  auction  to  the  last  and  highest  bidder,  after  the  advertisements 
and  publications  required  by  law,  to  wit :  ten  days  for  movables,  and 
thirty  days  for  real  estate  and  slaves. 

1  N.  S.  324 ;  4  L.  46T ;  See  S  L.  321. 

Art.  1160. — If  the  succession  which  is  administered  by  a  curator, 
is  insolvent,  and  the  property  is  not  sufficient  to  pay  the  debts  which 
are  known,  the  curator  is  bound  to  apply  to  the  judge  who  has  appointed 
him  for  an  order  for  a  meeting  of  the  creditors  of  the  succession,  at  the 
office  of  some  notary,  who  shall  be  named  for  that  purpose,  in  order  to 
deliberate  on  the  most  advantageous  manner  of  selling  the  effects  of  the 
euccession. 


165  OF  SUCCESSIONS.  165 

Stat.  29th  March,  1826,  p.  140. — ^  7.  Whenever  a  succession  shall 
have  baen  accepted  under  the  benelSit  of  an  inventory,  and  neither  the 
beneficiary  heir  or  heirs,  their  attorney  in  fact,  tutor,  or  curator,  will 
accept  the  administration  and  give  the  security  required  by  law,  and  if 
after  fifteen  days'  notice  given  by  order  of  the  judge,  in  the  usual  man- 
ner, no  one  presents  himself  to  administer  upon  the  said  estate,  on 
giving  the  security  required,  the  judge  of  the  court  of  probates  shall 
order  a  meeting  of  the  creditors  of  such  succession  to  be  held  at  the 
office  of  a  notai-y  public,  for  the  purpose  of  electing  syndics  to  administer 
the  property  of  such  succession :  The  same  deliberation  shall  prevail  in 
the  choice  of  syndics  in  such  cases,  as  in  the  choice  of  syndics  to  admi- 
nister estates  ceded  by  insolvent  debtors,  and  tlie  property  of  such  suc- 
cession shall  be  sold,  disposed  of,  and  administered  according  to  the 
rules  prescribed  by  this  act,  and  the  act  to  which  this  is  a  supplement, 
for  the  administration  of  estates  so  ceded,  saving  and  reserving  to  the 
beneficiary  heir  or  heirs  all  their  rights  and  claims  as  creditors  of  such 
succession,  and  their  rights  to  any  surplus  which  may  remain  after 
paying  the  debts  of  the  succession :  Provided,  that  nothing  herein  con- 
tained shall  be  so  construed  as  to  apply  to  successions  not  amounting  to 
the  sum  of  five  hundred  dollars,  for  the  summary  settlement  of  which 
it  is  provided  by  the  Civil  Code. 

§  8.  In  all  cases  where  the  heirs  of  any  person  deceased  shall  have 
renounced  his  succession,  it  shall  be  tlie  duty  of  the  judge  of  the  court 
of  probates  to  order  a  meeting  of  the  creditors  of  such  succession  to  be 
held  at  the  office  of  a  notary  public,  for  the  purpose  of  determining 
upon  what  terms  and  conditions  the  property  belonging  to  such  succes- 
sion shall  be  sold,  and  appointing  syndics  to  administer  the  same  :  The 
proceedings  relative  to  the  property  of  a  succession  so  renounced,  shall 
in  all  respects  be  conformable  to  those  prescribed  by  this  act,  and  the  act 
to  which  this  is  a  supplement,  for  the  administration  of  property  ceded 
by  insolvent  debtors. 

§  9.  In  all  cases  of  cessions  of  property  by  insolvent  debtors,  and  in 
all  cases  of  renunciations  of  successions  by  the  heirs,  if  there  shall  re- 
main a  surplus  after  payment  of  all  the  debts,  the  same  shall  be  paid 
over  to  the  ceding  debtor  or  debtors,  their  heirs  or  assigns,  or  to  the 
heirs  who  have  made  the  renunciation,  their  heirs  or  assigns,  as  the  case 
may  be. 

§  10.  In  all  cases  where  the  property  of  a  succession  shall  be  admi- 
nistered by  syndics  under  the  provisions  of  this  act,  the  judge  of  the 
court  of  probates  shall  order  to  be  paid  such  reasonable  sum  of  money 
as  to  him  shall  appear  proper  for  the  maintenance  of  the  heirs,  being 
children  of  the  deceased,  for  the  period  of  one  year,  and  until  their 
claims  against  the  succession  shall  be  ascertained  and  paid. 

^11.  The  judge  who  may  order  a  meeting  of  creditors  under  the 
provisions  of  this  act,  and  of  the  act  to  which  this  is  a  supplement,  may 
direct  such  meeting  to  be  held  in  ten  days  from  the  time  of  making  such 
order,  provided  it  shall  be  made  to  appear  to  the  judge  that  the  credit- 
ors residing  in  this  State,  but  out  of  the  parisli,  are  duly  represented  in 
said  parish. 

T  L.  812 ;  IT  L.  500 ;  19  L.  462 ;  12  E.  645. 


166  OF  SUCCESSIONS. 

Art.  1161. — This  meeting  shall  be  called  by  citation  to  the  creditors 
who  reside  in  the  State,  in  ten  days,  if  all  the  creditors  reside  within 
the  jurisdiction  of  the  judge  who  grants  the  order,  and  in  thirty  days,  if 
any  of  them  reside  out  of  his  jurisdiction. 

Art.  1 162. — Notice  of  the  meeting  shall  besides  be  given  by  adver- 
tisements in  the  usual  places,  and  publications  in  the  newspapers  in  the 
cases  required  by  law ;  and  if  there  be  creditors  absent  from  the  State, 
there  shall  be  appointed  a  counsel  to  represent  them  in  the  meeting  of 
the  creditors,  and  in  the  acts  which  may  grow  out  of  it. 

Art.  1 163. — If,  at  the  meeting  of  the  creditors  thus  assembled,  the 
creditors  by  privilege  or  mortgage  require  that  the  sale  of  the  effects  be 
made  for  cash,  their  wish,  in  this  respect,  shall  prevail  over  that  of  the 
other  creditors. 

But  as  to  the  ordinary  creditors,  if  a  majority  of  them  in  amount  or 
in  number,  if  their  debts  on  the  one  side  and  on  the  other  are  equal, 
wish  that  the  sale  be  made  on  certain  terms  of  credit,  the  opinion  of 
this  majority  prevails. 

5  Pv.  96 ;  10  E.  45T ;  C.  P.  990,  992,  995. 

Art.  1164. — When  the  creditors  have  thus  given  their  opinion,  the 
curator  shall  deposit  a  copy  of  the  proceedings  at  the  court  of  the  judge 
who  has  ordered  the  meeting,  and  demand  the  homologation  of  them. 

2  A.  T82 ;  See  11  L.  153. 

Art.  1165. — The  judge,  on  homologating  the  proceedings,  is  bound 
to  order  to  be  sold  for  cash  so  much  of  the  property  of  the  succession 
as  will  be  sufficient  to  pay  the  creditors  by  privilege  or  mortgage,  with 
interest  and  costs,  if  they  require  the  sale  to  be  thus  made. 

But  with  regard  to  the  excess  of  the  price  of  the  sale  of  the  property 
above  the  sum  necessary  to  pay  the  privilege  and  mortgage  creditors, 
the  judge  shall  grant  such  terms  of  credit,  and  exact  such  security  for 
the  payment  as  the  majority  of  the  ordinary  creditors  shall  have  deter- 
mined upon,  as  is  before  said. 

Art.  1 1 66. — In  case  of  a  vacant  succession,  or  of  a  succession  of 
which  all  or  a  part  of  the  heirs  are  absent  from  and  not  represented  in 
the  State,  when  the  succession  is  administered  by  a  curator,  the  creditors 
are  not  permitted  to  appoint  syndics  under  the  pretext  that  the  succes- 
sion is  insolvent,  the  curator  supplying  the  place  of  syndic  in  this  respect. 

13  L.  5S;  See  amendment  to  Art  1160,  §  T. 

Art.  1167. — The  curator  of  a  vacant  succession  or  of  absent  heirs 
cannot  pay  the  debts  of  the  succession,  save  some  privileged  debts  ex- 
cepted by  law,  until  three  months  after  the  succession  is  opened,  and 
only  in  the  manner  prescribed  in  the  following  articles. 

8L.  360;  19  L.  462;  12  E.  511. 

Art.  1 1 68. — When  the  time  for  the  payment  of  the  debts  of  the 
succession  is  arrived,  if  the  curator  has  sufficient  funds  to  pay  all  the 
creditors  who  have  presented  themselves  or  made  themselves  known, 
with  interest  and  costs,  he  is  bound  to  present  his  petition  to  the  judge 


167  OF  SUCCESSIONS.  167 

who  has  appointed  him,  to  be  authorized  to  pay  the  creditors  according 
to  a  statement  which  he  shall  annex  to  his  petition,  mentioning  the 
names  and  places  of  residence  of  the  creditors,  and  the  several  sums 
due  to  each. 

1  A.  92 ;  2  A.  895 ;  19  L.  462 ;  See  S  L.  506 ;  8  R.  121 ;  12  E.  8S,  511. 

Art.  1 1G9. — If,  on  the  contrary,  the  curator  has  not  sufficient  funds 
to  pay  all  the  creditors  of  the  succession,  he  shall  annex  to  his  petition 
a  tableau  of  the  distribution  which  he  makes  of  the  funds  in  his  hands 
among  the  creditors,  according  to  the  order  of  their  privileges  and  mort- 
gages, or  by  contribution  among  the  ordinary  creditors,  and  shall  con- 
clude witli  a  prayer  to  be  authorized  to  pay  them  according  to  this 
tableau. 

19  L.  462 ;  1  A.  92  ;  2  A.  895  ;  See  8  R.  121 ;  12  R.  83. 

Art.  1170. — The  curator  shall  include  in  the  statement  of  pay- 
ments or  tableau  of  distribution  the  creditors  whose  debts  are  not  yet 
liquidated,  for  the  amount  by  them  claimed,  saving  the  right  of  retain- 
ing in  his  hands  the  sums  for  which  they  are  placed  on  the  statement 
or  tableau,  until  it  be  determined  by  a  final  judgment  what  is  due  them. 

2  A.  895;  19  L.  462. 

Art.  1 171. — If  it  be  proved  to  the  judge  by  the  oath  of  one  or  two 
credible  witnesses  that  there  are  absent  creditors  who,  from  the  distance 
of  their  place  of  residence,  have  not  had  time  to  make  themselves 
known,  the  judge  shall  order  the  curator  to  include  these  creditors 
among  those  who  are  to  be  paid,  for  the  sums  declared  to  be  due  by 
such  witnesses. 

Art.  1172. — The  judge  to  whom  the  curator  shall  apply  to  be  au- 
thorized to  pay  the  creditors  according  to  the  statement  or  tableau 
which  he  has  presented,  shall  order  that  public  notice  be  given  of  this 
request  by  advertisements  at  the  usual  places  and  publications  in  the 
newspapers,  in  the  cases  prescribed  by  law,  requiring  all  those  whom  it 
may  concern,  to  make  opposition,  if  they  think  fit,  in  ten  days  from  the 
day  in  which  such  notice  is  given,  to  the  application  being  granted. 

6  L.  223 ;  19  L.  462 ;  See  8  R.  1 21. 

Art.  1173. — If  no  opposition  be  made  within  the  time  before  men- 
tioned, the  judge  shall  grant  to  the  curator  the  authorization  he  has 
requested,  and  the  curator  shall  proceed  immediately  to  pay,  according 
to  this  authorization,  all  the  creditors  whose  debts  are  liquidated  or 
acknowledged. 

With  respect  to  those  creditors  whose  debts  are  not  liquidated,  he 
shall  retain  in  his  hands  the  sums  for  which  they  have  been  placed 
upon  the  statement  or  tableau,  until  the  amount  due  is  settled  by  a 
definitive  judgment. 

Art.  1 174. — If,  on  the  contrary,  opposition  be  made  to  the  granting 
of  the  authorization  applied  for,  the  judge  shall  determine  thereon  in  a 
summary  manner. 

Art.  1175. — If  the  decision  of  the  judge  thereon  be  appealed  from, 
the  curator  is  bound  to  retain  a  sufficient  sum  to  satisfy  the  claims  on 
which  the  opposition  is  made,  with  interest  and  costs,  but  cannot,  under 
the  pretext  of  this  appeal,  refuse  to  distribute  among  the  creditors, 


168  OF  SUCCESSIONS. 

whose  debts  or  privileges  are  not  contested,  the  surplus  remtiiniug  after 
this  sum  being  retained. 

Art.  1 176. — If,  after  the  creditors  of  the  succession  have  been  paid 
by  the  curator,  in  conformity  with  the  dispositions  of  the  preceding 
articles,  creditors  present  themselves  who  have  not  made  themselves 
known  before,  and  if  there  does  not  remain  in  the  hands  of  the'  cura- 
tor a  sum  sufficient  to  pay  what  is  due  them,  in  whole  or  in  pai-t,  these 
creditors  have  an  action  against  those  who  have  been  paid,  to  compel 
them  to  refund  the  proportion  they  are  bound  to  contribute,  in  order  to 
give  the  new  creditors  a  part  equal  to  that  which  they  would  have  re- 
ceived had  they  presented  themselves  at  the  time  of  the  payment  of  the 
debts  of  the  succession. 

But  this  action  on  the  part  of  the  creditors  who  have  not  been  paid, 
against  the  creditors  who  have  been,  is  prescribed  by  the  lapse  of  three 
years,  counting  from  the  date  of  the  order  or  judgment,  in  virtue  of 
which  the  judgment  has  been  made. 

In  all  these  cases,  the  creditors  who  have  lately  presented  them- 
selves, can  in  no  manner  disturb  the  curator  on  account  of  the  payments 
he  has  made  under  the  authorization  of  the  judge,  as  before  stated. 

5  L.  468 ;  12  K.  50T ;  4  A.  834 ;  5  A.  8S. 

Art.  1177. — Notwithstanding  the  provisions  of  the  preceding  arti- 
cles, curators  of  vacant  successions  are  bound,  as  soon  as  they  have  suf- 
ficient funds  in  hand,  and  without  any  delay,  to  pay  the  funeral  expenses, 
costs  of  court,  and  the  expenses  of  the  last  sickness  of  the  deceased,  or 
other  debts,  the  payment  of  which  cannot  be  retarded,  provided  the 
accounts  of  these  charges  be  approved  by  the  judge  who  appointed  them, 
and  an  order  be  given  him  for  their  payment. 

Art.  1 178. — If  a  succession  is  so  small  or  is  so  much  in  debt  that 
no  one  will  accept  the  curatorship  of  it,  the  judge  of  the  place  where 
the  succession  is  opened,  after  having  made  an  inventory  of  the  cflFects 
composing  it,  shall  sell  it  and  apply  the  proceeds  thereof  to  the  payment 
of  the  debts  of  the  deceased,  in  the  same  manner  as  a  curator  would 
have  done,  had  one  been  appointed. 

Stat..  17,  January,  1838,  p.  5. — §  1. — That  the  article  eleven  hun- 
dren  and  seventy-eight  of  the  Civil  Code  of  the  State  of  Louisiana,  be 
so  amended  that  whenever  satisfactory  proof  shall  have  been  made  to 
any  judge  of  the  court  of  probates,  that  a  succession  is  so  small,  or  is 
so  much  in  debt,  that  no  person  will  apply  for,  or  be  willing  to  accept 
the  curatorship,  on  complying  with  the  existing  laws  on  this  subject,  the 
judge  of  the  court  of  probates  where  such  succession  is  opened,  shall 
have  the  power  without  any  previous  notice  or  advertisement  to  confer 
the  curatorship  of  such  succession  on  such  person  as  he  may  think  pro- 
per. That  the  curator  so  appointed,  shall  cause  the  effects  of  said  suc- 
cession to  be  sold,  and  the  proceeds  to  be  applied  to  the  payment  of  the 
debts  of  the  deceased  ;  the  whole  to  be  done  in  as  summary  a  manner  as 
possible,  to  diminish  costs,  and  under  the  immediate  direction  of  the 
judge  of  the  court  of  probates  ;  such  curator  to  be  allowed  a  reasonable 
compensation  for  his  services ;  and  shall  not  be  compelled  to  furnish 
bond  and  security,  except  in  cases  where  the  judge  shall  deem  it  neces- 
sary, and  that  in  all  cases  the  judge  of  the  court  of  probates  shall  fix 
v-he  compensation  of  the  curator,  and  the  amount  of  security,  when  he 


169  OF  SUCCESSIONS.  -      16S 

requires  it,  provided  that  this  law  shall  not  apply  to  successions  amount- 
ing to  upwards  of  five  hundred  dollars. 

12  L.  118;  IE.  559. 


§  7. — Of  the  Account  to  he  rendered  h/  the  Curators^  and  the  Commission  due 

to  them. 

Art.  1179. — The  time  for  the  administration  of  the  curators  of  va- 
cant successions  or  of  absent  heirs,  when  these  heirs  have  not  appeared 
or  have  not  sent  their  powers  of  attorney  to  claim  the  succession,  is  fixed 
at  one  year  from  tlie  day  of  their  appointment. 

But  the  administration  may  be  continued  beyond  this  term  as  is 
hereafter  prescribed. 

Stat.  13,  March ^  1837,  p.  96. — i^  7. — All  executors,  administra- 
tors, curators,  and  syndics,  shall  continue  in  office  until  the  estate  shall 
be  finally  wound  up,  any  law  to  the  contrary  notwithstanding;  j>^'ovided 
that  any  creditor  or  person  interested,  shall  have  the  right  to  require 
that  such  executor,  administrator,  or  curator,  sliall  give  new  or  addi- 
tional security  for  the  faitliful  performance  of  his  duties,  as  often  as 
once  in  every  twelve  months,  and  oftener  if  the  court,  on  motion  to  that 
eff"cct,  may  judge  it  to  be  necessary  to  the  interest  of  the  estate  or  the 
creditors  so  to  do. 

5  N.  S.  419  ;  1  A.  92. 

Art.  1180. — The  duties  of  curators  cease  even  before  tlie  term  fixed 
for  their  administration,  when  the  heirs  or  other  persons  having  a  right 
to  the  succession  administered  by  them,  present  themselves  or  send  their 
powers  of  attorney  to  claim  the  succession. 

4  L.  565 ;  3  N.  S.  601 ;  8  N.  S.  293. 

Art.  1 181. — When  the  heirs,  or  other  persons  having  a  right  to  the 
succession,  present  themselves,  or  send  their  powers  of  attorney  to  claim 
it,  they  are  bound  to  cause  themselves  to  be  recognized  as  such,  and 
shall  be  put  into  possession  by  the  judge  of  the  place  where  the 
succession  is  opened,  after  having  cited  the  curator  who  has  been  ap- 
pointed for  the  succession. 

9L.  281;  11  L.  179;  Sec  4  R.  42. 

Art.  1182. — As  soon  as  the  heir  or  his  attorney  in  fact  lias  been 
thus  put  into  possession  of  the  succession  or  of  the  effects  claimed  by 
him,  the  curator  is  bound  to  render  a  faithful  and  exact  account  of  his 
administration  to  him,  and  to  pay  the  balance  due,  deducting  a  commis- 
sion of  two  and  a  half  per  cent,  on  the  amount  of  the  effects  of  the  suc- 
cession, or  of  the  portion  by  him  administered,  according  to  the  inven- 
tory, not  taken  into  the  estimate  the  bad  debts. 

3  N.  S.  463 ;  Seo  12  L.  60S. 

Art.  1183. — When  the  heirs  do  not  present  themselves  nor  send 
their  powers  of  attorney  to  claim  the  succession,  it  is  the  duty  of  all  the 
curators  of  vacant  successions  or  of  absent  heirs,  one  year  after  their 
nomination,  to  render  an  account  of  their  administration  to  the  judge,  at 
the  instance  of  the  counsel  of  the  absent  heirs. 


170  OF  SUCCESSIONS. 

AiiT.  1 184. — When  the  balance  of  the  account  thus  rendered  by  cu- 
rators has  been  determined  by  a  final  judgment,  they  are  bound,  within 
thirty  days  from  the  date  thereof,  to  pay  the  same  into  the  hands  of  the 
treasurer  of  the  State,  who  shall  deliver  to  them  duplicate  receipts, 
making  mention  of  the  sum  received,  and  the  name  of  the  succession  or 
heirs  on  whose  account  it  has  been  paid. 

Art.  1185. — It  is  the  duty  of  the  judge  who  has  thus  definitively 
fixed  the  balance  due  by  curators  of  vacant  successions  and  of  absent 
heirs,  within  fifteen  days  at  farthest,  from  the  date  of  the  judgment 
thereon  rendered,  to  address  a  copy  thereof  to  the  treasurer  of  the  State, 
in  order  that  this  officer  may  know  the  amount  to  be  paid  into  his  hands. 

The  judge  shall  therefore  allow  in  the  accounts  of  these  curators, 
the  costs  to  be  incurred  for  the  copy  of  the  judgment  to  be  addressed  to 
the  treasiu'er  of  the  State,  and  that  which  is  to  be  delivered  to  the  cura- 
tor to  authorize  him  to  pay  the  balance  due. 

Art.  1186. — The  curator  who  has  paid  the  balance  of  his  account 
into  the  hands  of  the  treasurer  of  the  State  shall  deposit  one  of  the 
receipts  delivered  to  him  in  the  court  of  the  judge,  and  it  is  only  on  the 
exhibition  of  this  receipt  that  he  can  cause  himself  to  be  discharged  from 
his  administration  by  the  judge,  and  obtain  a  release  of  the  security  or 
mortgage  he  has  given  for  his  administration. 

Art.  1 187. — If,  at  the  rendition  of  this  account  by  the  curator  to 
the  judge,  at  the  end  of  the  year  after  his  appointment,  the  judge  be 
satisfied  that  the  succession  is  entirely  settled,  and  that  it  is  not  neces- 
sary to  prolong  the  administration,  he  shall  allow  the  curator  a  commis- 
sion of  two  and  a  half  per  cent,  on  the  amount  of  the  inventory  of  the 
eff'ects  of  the  succession,  or  of  the  portion  by  him  administered,  deduct- 
ing the  bad  debts. 

12  L.  60S;  3  A.  624;  See5  N.  S.  229  ;  3  L.  464  ;  4  A.  3S6;  Arts.  1062, 11S8, 1676. 

Art.  1 188. — But  if  it  appears  to  the  judge  that  the  succession  is  not 
entirely  settled,  and  that  it  will  be  necessary  to  prolong  the  administra- 
tion, he  shall  only  allow  the  curator  the  commission  of  two  and  a  half 
per  cent,  on  the  sums  received  or  recovered  by  him  during  his  adminis- 
tration. 

3  A.  621 

Art.  1 1 89. — The  commission  allowed  to  curators  of  vacant  suc- 
cessions and  of  absent  heirs,  is  calculated  on  the  whole  amount  of  the 
effects  of  the  succession,  deducting  bad  debts,  if  the  succession  is  va- 
cant, or  if  all  the  heirs  are  absent  from,  and  not  represented  in,  the 
State. 

But  when  there  are  only  some  of  the  heirs  who  are  absent  from,  and 
not  represented  in,  the  State,  the  commission  allowed  to  the  curator  is 
calculated  on  the  portion  of  the  eff'ects  of  the  succession  coming  to  those 
heirs  according  to  the  estimate  in  the  inventory,  deducting  bad  debts. 

5  N.  S.  62, 228. 


171  OF  SUCCESSIONS  171 

Art.  1 190. — If  there  are  two  curators  to  tlie  sarae  vacant  succession 
or  the  same  absent  heirs,  they  divide  the  commission,  and  no  augmenta- 
tion thereof  can,  under  any  pretence,  be  allowed. 

Art.  1191. — When  a  vacant  succession,  or  one  of  which  the  heirs 
or  part  of  them  are  absent  from,  and  not  represented  in  the  State,  has 
been  definitively  settled,  if  there  remain  in  the  hands  of  the  curator  any 
titles  or  papers  belonging  to  the  succession  or  the  heirs,  the  judge  shall 
order  them  to  be  deposited  in  court,  in  order  that  they  may  be  delivered 
to  the  heirs  or  their  attorneys  in  fact. 

Art.  1192. — The  funds  of  vacant  successions  or  absent  heirs,  paid 
into  the  treasury  of  the  State,  remain  in  deposit,  until  claimed  by  the 
heirs  of  those  having  a  right  to  them. 

These  funds  may  be  made  iise  of,  but  their  reimbursement  is  provid- 
ed for  and  guaranteed  on  the  faith  of  the  State,  so  that  the  heirs  who 
present  themselves,  shall  meet  with  no  delay  in  receiving  theof. 

8  A.  855. 

Art.  1 193. — If,  after  the  payment  into  the  hands  of  the  treasurer 
of  the  State,  and  the  discliarge  of  the  curator,  any  one  presents  him- 
self, having  the  right  to  claim  the  succession  or  the  payment  of  any 
debts  due  him  by  the  deceased,  such  heir  or  creditor  must  cause  his 
quality  to  be  recognized,  or  his  debt  to  be  liquidated  before  the  judge  of 
the  place  where  the  succession  has  been  opened,  after  having  cited  the 
counsel  of  the  absent  heirs. 

Art.  1 194. — If  the  demand  of  the  person  claiming  the  succession 
or  the  portion  of  it  administered  by  the  curator,  be  established  by  a 
judgment,  the  treasurer  of  the  State  shall  pay  to  such  person,  on  his 
exhibiting  an  authentic  copy  of  the  judgment,  the  amount  belonging  to 
the  succession  deposited  in  the  treasury. 

Art.  1195. — If  it  be  a  mere  debt  claimed  by  one  of  the  creditors 
of  the  succession,  the  treasurer  of  the  State  shall  pay  the  amount  there- 
of to  the  creditor  out  of  the  funds  deposited  in  the  treasury  belonging 
to  the  succession,  on  the  exhibition  of  an  authentic  copy  of  the  judg- 
ment establishing  his  debt,  as  is  before  said. 

Art.  1196. — If  curators  of  vacant  successions  or  of  absent  heirs  ne- 
glect, during  three  months  from  tlie  date  of  the  judgment  rendered  on 
their  accounts,  to  pay  the  balance  into  the  hands  of  the  treasurer  of  the 
State,  it  is  his  duty  to  denounce  them  to  the  attorney-general  or  district 
attorney  of  the  place  of  their  residence,  who  is  bound  to  sue  them  and 
their  securities  to  compel  the  payment  of  this  balance,  with  interest  from 
the  day  on  which  they  were  bound  by  law  to  make  such  payment. 

3  A.  855. 


172  OF  SUCCESSIONS. 

§  8. —  Of  the  Duties  of  Curators,  whose  Administration  is  2^rolonge(l  ieyond 

the  Legal  Terra. 

Art.  1197. — If,  at  the  expiration  of  the  year  after  the  curator  of  a 
a  vacant  succession  or  of  absent  heirs  has  been  appointed,  the  affairs  of 
the  succession  are  not  settled,  the  judge  ma_y,  if  he  thinks  the  interest 
of  the  succession  requires  it,  prolong  the  administration  for  one  year 
more,  and  thus  from  year  to  year  during  five  years  from  the  opening  of 
the  succession. 

9  L.  2S1 ;  3  K.  351 ;  See  12  K.  507. 

Art.  1198. — Though  the  administration  of  the  curator  be  prolong- 
ed, he  is  not  the  less  bound  to  render  his  account  every  year  to  the 
judge,  and  to  pay  the  balance  iu  his  hands  to  the  treasurer  of  the  State, 
according  to  the  provisions  contained  in  the  preceding  paragraph. 

9  L.  281. 

Art.  1 199. — The  judge  who  prolongs  the  administration  of  a  vacant 
succession  or  of  absent  heirs  beyond  a  year,  is  bound,  every  year  of  the 
prolongation  thus  granted,  to  exact  from  the  curator  a  renewal  of  the 
security  which  he  has  given  for  the  fidelity  of  his  administration.  But 
in  this  case  the  judge  cannot  require  from  the  curator  security  for  more 
than  one-fourth  beyond  the  estimated  value  of  the  property  left  under 
his  administration. 

Art.  1200. — The  curator  whose  administration  has  been  prolonged, 
has  the  right,  on  the  account  which  he  renders  each  year  of  his  adminis- 
tration, to  deduct  a  commission  of  two  and  a  half  per  cent,  on  what  he 
has  received  or  recovered  during  the  preceding  year. 

Art.  1201. — If  the  curator  of  a  vacant  succession  or  of  absent  heirs, 
who  has  been  first  appointed,  will  not  continue  to  act,  or  if  he  dies,  ab- 
sents himself,  or  is,  by  other  means,  prevented  from  performing  his 
duties,  the  judge  of  the  place  where  the  succession  is  opened,  may,  if 
he  thinks  it  necessary  to  the  interests  of  the  succession,  appoint  another 
curator  to  finish  the  settlement  of  the  estate. 

In  this  case  the  appointment  must  be  made  according  to  the  same 
rules  as  are  prescribed  for  the  appointment  of  curators  of  vacant  suc- 
cessions and  absent  heirs,  and  these  new  curators  have  the  same  duties 
to  perform  and  enjoy  the  same  rights  as  the  curator,  whose  administra- 
tion is  prolonged  beyond  the  year. 

Art.  1202. — If,  at  the  expiration  of  a  year  from  the  appointment 
of  a  curator  of  a  vacant  succession  or  absent  heirs,  there  be  real  estate 
or  slaves  belonging  to  the  succession,  which  have  not  been  sold,  the 
judge  is  bound,  on  the  request  of  the  curator,  to  order  the  sale  of  them 
to  be  made  at  public  auction,  at  the  periods  and  after  the  advertisements 
and  publications  prescribed  by  law,  at  one  or  two  years  credit,  and  with 
the  proper  securities. 

Instead  of  "  one  '  or'  two  years  credit,"  read  "  one  '  fljid'  two  years."    See  French  test 

Art.  1203. — Before  proceeding  to  this  sale,  the  judge  is  bound  to 
cause  the  property  to  be  disposed  of  according  to  the  preceding  article 


173  OF  SUCCESSIONS.  173 

to  be  estimated  by  experts  by  him  appointed  and  sworn,  and  if,  at  the 
sale,  two-thirds  of  the  estimated  value  be  not  offered  for  it,  the  sale 
shall  be  suspended,  and  the  curator  is  bound  to  have  it  again  exposed, 
after  the  same  time  of  notice,  advertisements  and  publications  prescrib- 
ed by  law,  at  one,  two,  and  three  years'  credit ;  but  then  the  property 
must  be  sold  at  the  price  offered. 


§  0. —  Of  the,  Afpointment  of  Counsel  of  Absent  ITeirs^  and  of  their  Duties. 

Art.  1 204. — On  the  opening  of  a  vacant  succession,  or  of  one  of  which 
the  heirs  or  part  of  them  are  absent  from  and  not  represented  in  the 
State,  it  is  the  duty  of  the  judges  who  have  inventories  to  make  of  the 
effects  of  these  successions,  to  appoint  a  counsel  to  the  absent  heirs  to 
assist  at  these  inventories. 

11  L.  149 ;  12  L.  73 ;  15  L.  6G,  527 ;  18  L.  570. 

Art.  1205. — The  counsel  to  the  absent  heirs,  who  is  appointed  by 
the  judge  of  the  place  where  the  succession  is  opened,  must,  if  possible, 
be  an  attorney  admitted  to  practise  in  the  courts  of  this  State,  and  it  is 
his  duty  to  represent  the  absent  heirs,  not  only  in  the  inventory,  but  in 
all  the  acts  required  by  law  to  be  done. 

5  L.  472. 

Art.  1206. — The  counsel  appointed  by  the  judge  must,  imn-.odiately 
after  his  appointment,  search  among  the  papers  of  the  deceased,  and  get 
all  the  information  he  can,  to  assure  himself  of  the  place  of  birth  of  the 
deceased,  and  where  his  heirs  reside,  in  order  to  correspond  with  them 
and  give  them  notice  of  the  death  of  the  deceased,  of  the  name  and  resi- 
dence of  the  curator  appointed  to  bis  succession,  and  the  state  in  which 
his  affairs  are  left. 

Art.  1207. — If,  in  the  interval  between  the  opening  of  the  succession 
and  the  appointment  of  the  curator,  there  are  any  conservatory  acts  to 
be  performed,  or  suits  to  be  instituted,  the  delay  of  which  may  injure 
the  succession,  the  counsel  of  the  absent  heirs  shall  be  authorized  to  per- 
form such  acts,  or  institute  such  suits  before  any  court,  on  proving  his 
appointment  by  the  certificate  thereof  under  the  seal  of  the  court  which 
has  appointed  him. 

5  N.  S.  11. 

Art.  1208. — When  a  suit  has  been  instituted  by  the  counsel  of  the 
absent  heirs  of  a  succession,  in  conformity  with  the  provisions  of  the 
preceding  article,  and  judgment  has  not  been  rendered  therein  at  the 
time  the  curator  is  appointed,  the  curator  shall  not  be  obliged  to  recom- 
mence the  suit,  but  may  continue  it  as  it  is,  substituting  his  name  for  that 
of  the  counsel  of  the  absent  heirs,  who  has  commenced  it. 

8eo  1  N.  S.  039. 

Art.  1209. — The  counsel  of  the  absent  heirs  cannot,  if  he  be  an  at- 
torney, be  engaged  in  any  suit  against  the  heirs  whom  he  represents,  as 


174  OF  SUCCESSIONS. 

long  as  the  succession,  to  which  these  heirs  have  a  right,  is  administered 
by  a  curator  judicially  appointed. 

Art.  1210. — The  counsel  of  the  absent  heirs  shall  continue  to  act 
as  such  until  the  heirs  present  themselves  or  send  their  powers  of  attor- 
ney to  claim  the  succession,  or  until  the  curator  is  finally  discharged. 

6  L.  G53 ;  IS  L.  570 ;  1  E.  514. 

Art.  1211. — Nevertheless,  the  counsel  of  the  absent  heirs  may 
cause  himself  to  be  discharged  by  the  judge  who  has  appointed  him,  if 
he  is  prevented,  by  any  good  cause,  from  performing  the  duties  thereof. 

1L.45. 

Art.  1212. — If  the  counsel  of  absent  heirs  dies,  absents  himself  or 
is  discharged,  the  judge  is  bound  to  appoint  another  counsel  of  absent 
heirs  in  his  stead. 

Art.  1213. — The  counsel  of  absent  heirs  have  a  right  to  receive  fees 
or  emoluments  proportioned  to  the  pains  taken  in  the  performance  of 
their  duties,  out  of  the  funds  of  the  succession  of  which  they  represent 
the  heirs,  but  those  fees  or  emoluments  shall  not  be  granted  to  them, 
except  on  proof  being  made  of  the  services  by  them  rendered,  and  of 
the  value  thereof,  after  having  cited  the  heirs,  if  they  present  themselves, 
or  the  curator  appointed  to  the  succession  in  whicli  these  heirs  have 
rights. 

4  L.  434. 


CHAPTER  VIII. 

OF  partition,  and  of  the  collation  of  goods. 
Section  I. — Of  the  Partition  of  Sticcessions. 


§  1. — Of  the  Nature  of  Partition,  and  of  its  Several  Kinds. 

Art.  1214. — When  a  person,  at  his  decease,  leaves  several  heirs, 
each  of  them  becomes  an  undivided  proprietor  of  the  effects  of  the 
succession,  for  the  part  or  portion  coming  to  him,  which  forms  among 
the  heirs  a  community  of  property,  as  long  as  it  remains  undivided. 

5  A.  561. 

Art.  1215. — No  one  can  be  compelled  to  hold  property  with  an- 
other, unless  the  contrary  has  been  agreed  upon ;  any  one  has  a  right 
to  demand  the  division  of  a  thing  held  in  common,  by  the  action  of  peti- 
tion. 

The  last  word  of  this  article  should  evidently  be  '■^partition ;"  See  French  text ;  See  3  K.  48. 

Art.  1216. — The  partition  of  a  succession  is  the  division  of  the 
effects,  of  which  the  succession  is  composed,  among  all  the  co-heirs,  ac- 
cording to  their  respective  rights. 

Art.  1217. — Partition  is  voluntary  or  judicial : 

It  is  voluntary,  when  it  is  made  among  all  the  co-heirs  present  and 
of  age,  and  by  their  mutual  consent ; 

It  is  judicial,  when  it  is  made  by  the  authority  of  a  court,  and  accord- 
ing to  the  formalities  prescribed  by  law. 

8  L.  262  ;  10  L,  454 ;  See  11 M.  443. 


175  OF  SUCCESSION'S.  175 

Art.  1218. — Every  partition  is  either  definitive  or  provisional : 
Definitive  partition  is  that  which  is  made  in  a  permanent  and  irrevo- 
cable manner  ; 

Provisional  partition  is  that  which  is  made  provisionally,  either  of 
certain  things  before  the  rest  can  be  divided,  or  even  of  every  thing  that 
is  to  be  divided,  when  the  parties  are  not  in  a  situation  to  make  an  irre- 
vocable partition. 

Art.  1219. — By  definitive  partition  is  also  understood  the  judicial 
partition,  made  according  to  law;  and  by  provisional  partition,  tliat  in 
which  the  formalities  prescribed  by  law  have  not  been  observed,  or  that 
by  which  the  parties  are  not  definitively  bound. 

7L.  156;  See  11  L.  494. 

Art.  1220. — It  cannot  be  stipulated  that  there  never  shall  be  a  par- 
tition of  a  succession  or  of  a  thing  held  in  common.  Such  a  stipulation 
would  be  null  and  of  no  efi'ect. 

Art.  1221. — Nevertheless,  the  co-heirs  can  agree  that  there  shall 
not  be  a  partition  of  the  eifects  of  the  succession  for  a  certain  limited 
time,  and  such  an  agreement  will  be  valid ;  but  it  will  be  assimilated  in 
this  case  to  a  contract  of  partnership  between  the  heirs,  and  subject  to 
the  same  rules. 

Art.  1222. — A  donor  or  testator  cannot  order  that  the  efi'ects  given 
or  bequeathed  by  him  to  two  or  more  persons  in  common,  shall  never  be 
divided,  and  such  a  prohibition  would  be  considered  as  if  it  were  not 
made. 

Art.  1223. — But  a  donor  or  testator  can  order  that  the  efi'ects  given 
or  bequeathed  by  him,  be  not  divided  for  a  certain  time,  or  until  the 
happening  of  a  certain  condition. 

But  if  the  time  fixed  exceed  five  years,  or  if  the  condition  do  not 
happen  within  that  term,  from  the  day  of  the  donation  or  of  the  open- 
ing of  the  succession,  the  judge,  at  the  expiration  of  tliis  term  of  five 
years,  may  oi^der  the  partition,  if  it  is  proved  to  him  that  the  co-heirs 
cannot  agree  among  themselves,  or  difi"er  as  to  the  administration  of  the 
common  efi'ects. 

Art.  1224. — If  the  father  or  other  ascendant  orders  by  his  will  that 
no  partition  shall  be  made  among  liis  minor  children  or  minor  grand- 
children inlieriting  from  him,  during  the  time  of  their  minority,  this  pro- 
hibition must  be  observed,  until  one  of  the  children  or  grandchildren 
comes  of  age,  and  demands  tlie  partition. 

Art.  122.5. — There  is  no  occasion  for  partition,  if  the  deceased  has 
regulated  it  between  his  lawful  heirs,  or  strangers ;  and  in  such  case, 
the  judge  must  follow  the  will  of  the  testator. 

The  same  thing  takes  place  where  the  testator  has  assigned  distinct 
parts  of  the  estate  for  the  paternal  legal  portion  of  his  children. 

Art.  1226. — There  can  be  no  partition,  when  the  use  of  the  thing 
held  in  common  is  indispensable  to  the  co-heirs,  to  enable  them  to  en- 
joy, or  to  derive  an  advantage  from  the  portion  of  the  efi'ects  of  the  suc- 
cession falling  to  them,  such  as  an  entry  which  serves  as  a  passage  to 


176  OF  SUCCESSIONS. 

several  liouses,  or  a  way  comiuon  to  several  estates,  and  other  things  of 
the  same  kind. 

AiiT.  12-27. — The  action  of  partition  cannot  be  proscribed  against,  as 
long  as  the  thing  remains  in  common,  and  sucli  community  is  acknow- 
ledged or  proved. 

Thus,  though  co-heirs  have  enjoyed  their  hereditary  effects  in  com- 
mon for  an  hundred  years  and  more,  without  making  a  division,  any  of 
them  can,  at  any  time,  sue  for  a  partition. 

3  L.  459. 

Art.  1228. — When  one  of  tlie  heirs  has  enjoyed  the  whole  or  part 
of  the  succession  separately,  or  all  the  co-heirs  have  possessed  each  a 
portion  of  the  hereditary  effects,  he  or  they  wlio  have  thus  separately 
possessed,  can  successfully  oppose  the  suit  for  a  i)artition  of  the  effects 
of  the  succession,  if  their  possession  has  continued  thirty  years  without 
interruption. 

2  A.  4S6,  749. 

Art.  1229. — If  there  be  but  one  of  the  heirs,  who  has  separately 
enjoyed  a  portion  of  the  effects  of  the  succession  during  tiiirty  years, 
and  all  the  other  heirs  have  possessed  the  residue  of  the  effects  of  the 
succession  in  common,  the  action  of  partition  among  the  latter  will  al- 
ways subsist. 

2  A.  T49. 

§  2. — Among  what  Persons  Partition  can  he  sued  for. 

Art.  1230. — A  partition  may  be  sued  for  by  any  heirs,  testamentary 
or  ah  intcstato. 

It  can  also  be  sued  for  by  any  universal  legatee  or  legatees  under 
an  universal  title,  and  even  by  a  particular  legatee,  when  a  thing  has 
been  bequeathed  to  him  in  common  with  two  or  several  persons. 

8L.12S;  17L.  34G;  C.  P.  1020. 

Art.  1231. — The  action  of  partition  will  not  only  be  between  co- 
heirs and  co-legatees,  but  between  all  persons  who  hold  property  in  com- 
mon, from  whatever  cause  they  may  hold  in  common. 

3  L.  12S ;  7  L.  440 ;  17  L.  340. 

Art.  1232. — It  is  not  indispensable  to  be  holder  in  common  in  or- 
der to  be  able  to  su})port  tlic  action  of  partition  ;  possession  alone,  when 
it  is  lawful  and  jjroceeds  from  a  just  title,  will  support  it. 

Tlius,  usufructuaries  of  the  same  inheritance  can  institute  among 
themselves  the  action  of  partition. 

Art.  1233. — But  the  possession,  necessary  to  support  this  action, 
must  be  in  the  names  of  the  persons  enjoying  it,  and  for  themselves ; 
it  cannot  be  instituted  by  those  who  possess  in  the  name  of  another,  as 
tenants  and  depositories. 

Art.  1234. — Partitions  cannot  only  be  sued  for  by  the  majority  of 
the  heirs,  but  by  each  of  them,  so  that  one  heir  alone  can  force  all  the 
rest  to  a  partition  at  his  instance. 

Art.  1235. — Tutors  of  minors,  and  curators  of  persons  interdicted 
have  the  right  to  institute  in  their  names  suits  for  the  partition  of  the 
effects  of  successions,  whether  movable  or  immovable,  falling  to  minors 


177  OF  SUCCESSIONS.  177 

or  persons  intcvtlictccl,  provided  they  are  specially  authorized  by  the 
judge  on  the  advice  of  the  family  meeting. 

10  L.  454;  11  L.  439;  2  A.  553. 

Art.  123G. — Minors  above  the  age  of  puberty,  and  those  who  are 
emancipated,  can,  with  the  same  authorization  and  with  the  assistance 
of  their  curators,  ad  lites,  sue  for  the  partition  of  estates  in  which  they 
are  interested. 

9  L.  567 ;  2  A.  553 ;  Sec  Art  862. 

Art.  1237. — But  the  authorization  of  the  judge  is  not  necessary  to 
enable  tutors  or  curators  of  minors  or  persons  interdicted,  or  minors 
above  the  age  of  puberty,  or  emancipated,  to  answer  to  suits  for  partition 
brought  against  them. 

Art.  1238. — With  regard  to  the  absent  co-heirs,  the  curators  who 
have  been  appointed  to  them,  or  the  relations  who  have  been  put  into 
possession  of  their  eflects,  can  sue  or  be  sued  for  a  partition,  as  repre- 
senting in  every  respect  the  absent  heirs. 

2  A.  466. 

Art.  1239. — Married  women,  even  if  they  be  separated  in  estate, 
cannot  institute  a  suit  for  partition  without  the  authorization  of  their 
husbands  or  of  the  judge. 

But  no  authorization  is  necessary,  if  they  are  separated  from  bed 
and  board,  or  divorced  from  their  husbands. 

Art.  1240. — The  husband  can,  without  the  concurrence  of  his  wife, 
cause  the  definitive  partition  of  the  movable  effects  of  the  succession 
falling  to  her,  if,  b}'  the  marriage  contract,  her  present  and  future  ef- 
fects are  settled  on  her  as  dowry. 

But  in  such  case  he  cannot,  without  the  concurrence  of  his  wife, 
compel  the  definitive  partition  of  the  immovable  property  of  a  succes- , 
sion  falling  to  her,  and  which  forms  part  of  her  dowry.     Any  partition 
thus  made  will  be  merely  provisional. 

But  the  co-heirs,  of  whom  the  partition  is  demanded,  can  render  it 
definitive  by  making  the  wife  a  party  to  the  suit  for  partition. 

On  the  other  hand,  the  co-heirs  of  the  wife  cannot  compel  her  to  a 
partition  without  making  her  and  her  husband  a  party  to  the  suit. 

2  K.  1. 

Art.  1241. — Not  only  the  co-heir  himself,  but  the  heirs  of  that  co- 
heir, and  anj'  other  successor  can  compel  a  partition  of  the  estate,  and 
be  themselves  compelled  to  make  it. 

Art.  1242. — The  right  given  by  the  ancient  laws  to  the  heirs  of  a 
deceased  person,  to  compel  the  assignee  or  purchaser  of  a  portion  of 
the  succession  sold  by  their  co-heirs  to  retrocede  it  to  them  for  the  price 
paid  for  it,  is  repealed. 

Art.  1243. — It  is  not  necessary,  to  support  the  action  of  partition, 
that  the  co-heirs,  or  the  party  commencing  it,  should  be  in  actual  pos- 
session of  the  .succession  or  of  the  thing  to  be  divided ;  for  among  co- 
heirs and  co-proprietors,  it  is  not  the  possession  but  the  property,  which 
is  the  basis  of  the  action. 

Art.  1244. — It  follows  from  the  provisions  of  the  preceding  article 
that  the  partition  can  be  demanded,  even  though  one  of  the  heirs  should 
12 


178  OF  SUCCESSIONS. 

have  enjoyed  some  part  of  the  estate  separately,  if  there  has  been  no  act 
of  partition,  nor  possession  sufficient  to  acquire  prescription. 


^  3. — In  what  Manner  the  Judicial  Partition  is  made. 

Art.  1245. — If  all  the  heirs  arc  of  age  and  present  or  represented, 
the  partition  may  be  made  in  such  form  and  by  such  an  act  as  the  par- 
ties interested  agree  upon. 

8L.128;  SeeSN.S.  409. 

Art.  124G. — If,  on  the  contrary,  all  the  heirs  are  not  present,  if 
there  be  among  them  minors  or  persons  interdicted,  or  if  all  the  heirs  of 
age  and  present  do  not  agree  to  the  partition  or  on  the  manner  of  ma- 
king it,  it  shall  be  made  judicially  and  in  the  form  hereafter  prescribed. 

6  L.  4T3 ;  IT  L.  .346 ;  C.  P.  IIG,  904. 

Akt.  1247. — Every  judicial  jDartition  shall  be  preceded  by  an  inven- 
tory, in  which  the  effects  to  be  divided  shall  be  appraised,  according  to 
the  form  prescribed  for  public  inventories. 

2  A.  553 ;  2  N.  S.  1 ;  5  N.  S.  551. 

Art.  1248. — The  public  inventory,  which  may  have  been  made  b}' 
the  parties  interested  at  a  time  not  exceeding  one  year  previous  to  the 
suit  for  a  partition,  shall  serve  as  the  basis  of  the  partition,  unless  one 
of  the  heirs  demands  a  new  appraisement,  and  proves  that  the  effects 
mentioned  in  the  inventory  have  not  been  estimated  at  their  just  price, 
or  at  the  value  they  have  acquired  since  the  date  of  this  act. 

14  L.  272. 

Art.  1249. — In  this  case  the  judge  is  bound  to  order  a  new  ap- 
praisement of  the  effects  to  be  divided,  which  shall  be  made  by  experts 
appointed  by  him  to  that  effect,  and  duly  sworn  by  the  notary,  who  is 
appointed  to  make  the  2:»roces  verbal  of  the  appraisement. 

Art.  1250. — The  action  of  partitition  and  the  contestations  which 
may  arise  in  the  course  of  proceedings,  are  to  be  brought  before  the 
judge  of  the  place  where  tlie  succession  is  opened,  though  one  of  the 
parties  interested  may  have  his  domicil  out  of  tlie  jurisdiction  of  tlie 
judge. 

2  A.  329. 

Art.  1251. — The  judge,  before  whom  the  action  of  partition  is  brought, 
is  bound  to  pronounce  thereon  in  a  summary  manner,  by  which  is  always 
meant,  with  the  least  possible  delay,  and  in  preference  to  the  ordinary 
suits  pending  before  him. 

Art.  1252. — The  suit  for  partition  ought  to  be  instituted  by  the 
heir  who  wishes  the  division ;  the  co-heirs  or  their  representatives  must 
be  cited,  in  order  that  the  partition  may  be  ordered,  and  the  form  there- 
of determined,  if  there  should  be  any  dispute  in  this  respect. 

3  L.  12S ;  17  L.  349 ;  19  L.  30 ;  4  A.  50,  200 ;  See  10  L.  157 ;  C.  P.  1024. 

Art.  1253. — He  who  sues  another  for  a  partition  of  the  effects  of  a 
succession,  confesses  thereby  that  the  person  against  whom  the  suit  is 
brought,  is  an  heir. 

Art.  1254. — If  a  partition  is  to  be  made  among  the  children  or  de- 
scendants of  the  deceased,  and  one  of  the  heirs  alleges  that  his  co-heir 
isj  bound  to  collate  a  piece  of  real  property,  which  has  been  given  him  by 


179  OF  SUCCESSIONS. 


17S 


the  (leceasctl,  and  ro  [uires  that  his  co-heir  should  decide  on  the  manner 
in  which  lie  wishes  to  make  this  coUation,  the  judge,  if  it  be  proved  that 
the  co-heir  is  bound  to  colhite  the  property,  shall  order  that  the  donee 
decide  thereon,  within  a  term  to  be  fixed  by  tlie  judge,  which  cannot  ex- 
ceed three  days  from  the  day  on  which  the  order  has  been  notified  to 
him,  if  he  or  his  representative  is  found  in  the  place. 

Art.  1255. — If  the  donee,  who  is  bound  to  collate  a  piece  of  real 
estate  given  him  by  the  deceased,  declare  within  the  term  fixed,  as  afore- 
said, that  he  will  return  it  in  kind,  the  property,  from  that  instant,  be- 
comes united  to  the  other  efi"ects  of  the  succession  which  is  to  be  divided. 

Art.  125G. — But  if  the  donee  declare  that  he  will  not  return  the 
real  estate,  which  has  been  given  him,  but  will  take  his  share  in  the  effects 
of  the  succession,  after  deducting  the  value  of  such  real  estate,  or  if  he 
permits  the  term  granted  to  him  to  make  his  decision,  to  expire,  without 
deciding  on  the  manner  in  which  he  will  make  his  collation,  he  shall  lose 
the  right  of  returning  this  property  in  kind. 

Art.  1257. — Whether  the  donee  has  decided  that  he  will  collate  in 
kind  or  by  deduction,  the  co-heirs,  to  whom  the  collation  is  due,  have 
the  riglit,  as  soon  as  the  donee  has  decided  thereon,  to  require  and  ob- 
tain an  order  that  the  property  subject  to  the  collation  be  appraised,  as 
is  prescribed  in  the  following  section,  in  order  that  it  may  be  included 
among  the  effects  to  be  divided  for  the  sum  at  which  it  is  appraised. 

Art.  1258. — All  points,  arising  before  the  judge  having  cognizance 
of  the  suit  for  partition  on  the  manner  of  making  the  collation  or  other 
operations  relating  to  the  partition,  being  merely  incidental  to  the  suit, 
shall  be  decided  on  the  simple  motion  of  the  party  interested  in  haviuf^ 
them  decided,  the  same  being  duly  notified  to  the  otlier  heirs  or  their 
attorneys,  and  a  reasonable  time  being  granted  to  answer  thereto. 

Art.  1259. — The  judge  who  decides  on  a  suit  for  a  partition  and  on 
the  mode  of  eflFucting  it,  has  a  right  to  regulate  this  mode  as  may  appear 
to  him  most  convenient  and  most  advantageous  for  the  general  interest 
of  the  co-heirs,  in  conformity,  nevertheless,  with  the  following  provisions. 

11  L.  439;  5A,20S. 

Art.  12G0. — Each  of  the  coheirs  may  demand  in  kind  his  share  of 
the  movables  and  immovables  of  the  succession  ;  but  if  there  are  cred- 
itors who  have  made  any  seizure  or  opposition,  or  if  a  majority  of  the  co- 
heirs are  of  opinion  that  the  sale  is  necessary  in  order  to  satisfy  the  debts 
and  charges  of  the  succession,  the  movables  shall  be  sold  at  public  auc- 
tion, after  the  usual  advertisements. 

Stat.  28th  March,  1832.—^  1.  Whenever  two  or  more  persons  shall 
be  co-proprietors  of  one  continuous  tract  of  land  situated  partly  in  dif- 
flfercnt  parishes,  any  one  ormore  of  said  co-proprietors  may  institute  an 
action  for  partition  of  the  whole  of  said  tract  in  any  one  of  s\ich  pari.'^hcs. 

^  2.  In  all  judicial  partitions  where  the  property  is  divided  in  kind, 
the  mortgages,  liens  and  privileges  existing  against  one  of  the  co-pro- 
prietors shall,  by  the  mere  fact  of  the  partition,  attach  to  the  share  al- 


IgO  OF  SUCCESSIONS. 

lotted  to  him  by  the  partition,  and  cease  to  attach  to  the  shaies  allotted 
to  his  co-proprietors  :  Provided^  liowcvcr,  that  if  any  return  of  money 
be  required  to  be  made  to  any  co-proprietor  -whose  share  is  mortgaged  or 
otherwise  encumbered,  by  reason  of  the  share  allotted  to  him  being  of 
less  value  than  the  other  shares,  then  such  sums  of  money  shall  remain 
in  the  hands  of  the  parties  bound  to  contribute  it  respectively,  shall  be 
secured  by  mortgage  on  their  respective  shares,  and  be  subject  to  the 
demand  of  those  creditors  of  their  co-proprietor  who  possessed  mortgage 
or  privileged  claims  against  him,  and  according  to  the  rank  and  priority 
of  said  creditors. 

11  L.  430. 

Art.  1261. — "When  the  property  is  indivisible  by  its  nature,  or  when 
it  cannot  be  conveniently  divided,  the  judge  shall  order,  at  the  instance 
of  any  one  of  the  heirs,  on  proof  of  either  of  these  facts,  that  it  be  sold 
at  public  auction,  after  the  time  of  notice  and  advertisements  prescribed 
by  law,  and  in  the  manner  hereinafter  prescribed. 

11  L.  439 ;  1  R.  512 ;  3  E.  43 ;  2  A.  553. 

Art.  1262. — It  is  said  that  a  thing  cannot  bo  conveniently  divided, 
when  a  diminution  of  its  value,  or  loss  or  inconvenience  of  one  of  the 
owners,  would  be  the  consequence  of  dividing  it. 

Art.  1263. — When  the  eifects  of  a  succession  are  to  be  sold,  in  order 
to  effect  a  partition,  if  all  the  heirs  of  the  deceased  are  absent,  minors 
or  interdicted,  the  judge  may,  at  the  instance  of  the  tutors  and  curators 
of  these  heirs,  and  on  the  advice  of  the  meeting  of  the  family  of  those 
of  the  heirs  who  are  minors  or  interdicted,  order  the  sale  to  be  made  on 
certain  terms  of  credit  and  on  proper  security,  unless  the  payment  of 
the  debts  of  the  succession  require  that  the  sale  be  made  for  cash. 

Art.  1264. — If  there  be,  among  the  heirs  of  the  deceased,  any  who 
are  of  age  and  present,  and  who  demand  that  the  sale  be  made  for  cash, 
it  shall  be  made  for  cash,  for  a  sufficient  sum  to  cover  the  portion  com- 
ing to  them,  and  on  a  credit  for  the  balance,  on  the  terms  prescribed  by 
the  other  heirs. 

But  on  the  partition  of  the  proceeds  of  the  sale,  the  whole  amount 
shall  be  reduced  to  its  cash  value,  by  deducting  from  the  whole  sum  to 
be  paid,  ten  per  cent.  y;er  annum,  and  those  heirs  who  require  their  por- 
tion in  cash,  shall  receive  it  on  the  whole  amount  thus  reduced. 

Stat.  2Sth  April,  1853. — No.  190.  An  Act  to  amend  Article  one 
thousand  two  lamdrcd  and  sixty -four  of  the  Civil  Code. — Be  it  enact- 
ed by  the  Senate  and  House  of  Representatives  of  the  State  of  Louisia- 
na, in  General  Assembly  convened,  That  article  one  thousand  two  hun- 
dred and  sixty-four  of  the  Civil  Code  be,  and  the  same  is  hereby  amend- 
ed, so  as  to  read  as  follows,  to  wit :  If  there  be  among  the  heirs  of  the 
deceased,  who  are  of  age  and  present,  and  who  demand  that  the  sale  be 
made  for  cash,  it  shall  be  made  for  cash,  for  a  sufficient  sum  to  cover  the 
portion  coming  to  them,  and  on  a  credit  for  the  balance  on  the  terms 
prescribed  by  the  otlier  heirs. 

But,  on  the  partition  of  the  proceeds  of  the  sale,  the  whole  amount 
shall  be  reduced  to  its  ca&h  value,  by  deducting  from  the  whole  sum  to 


181  OF  SUCCESSIONS.  181 

be  paid   eight  per  cent,  per  annum,  and  those  heirs  who  require  their 
portion  in  cash  shall  receive  it  on  the  whole  amount  thus  reduced. 

1  A.  212. 

AuT.  1265. — Any  co-heir  of  age,  at  the  sale  of  the  hereditary  effects, 
can  become  a  purchaser  to  the  amount  of  the  portion  owing  to  him  from 
the  succession,  and  he  is  not  obliged  to  pay  the  surjilus  of  the  purchase 
money  over  tlie  portion  coming  to  him,  until  this  portion  has  been  de- 
finitively fixed  by  a  partition. 

See  amendment  to  Art  1139 ;  14  L.  Ill ;  19  L.  .5.57 ;  3  R.  439 ;  4  R.  87 ;  12  R.  666 ;  2  A.  412  ;  5  A.  20>. 

Art.  12G6. — The  minor  co-heirs  may  also  become  purchasers  of  the 
hereditary  effects,  by  the  intervention  of  their  tutors  or  curators,  or  by 
their  assistance,  if  they  have  been  specially  authorized  thereto  by  the 
judge,  with  the  advice  of  the  family  meeting. 

Art.  12G7. — "When  the  judge  has  ordered  the  partition,  and  regu- 
lated the  manner  in  which  it  shall  be  made,  as  well  as  the  collations,  if 
the  case  require  it,  he  shall  refer  the  parties  to  a  notary  appointed  by 
him  to  continue  the  judicial  partition  to  be  made  between  them. 

1  R.  512. 

Art.  1268. — If  the  heirs  who  have  instituted  the  suit  for  partition 
be  of  age,  and  present,  and  the  judge  has  fixed  the  mode  of  making  it, 
whether  in  kind  or  otherwise,  nothing  shall  prevent  the  heirs  from  con- 
tinuing their  partition  amicably  and  in  the  manner  they  think  proper. 


§  4. — HoiD  the  Notary  is  hound  to  j>i'occed  in  the  Judicial  Partition. 

Art.  1269. — The  notary  appointed  to  make  the  partition  is  bound, 
within  fifteen  days  at  farthest  from  the  notice  of  his  appointment,  to 
notify  the  heirs  or  their  representatives,  in  writing,  of  the  day,  hour, 
and  place  in  which  he  is  to  commence  his  work,  sufficient  time  previous 
thereto,  t6  enable  them  to  attend,  if  they  think  proper. 

4L.  59;  16  L.  157. 

Art.  1270. — As  the  business  of  partitions  sometimes  requires  several 
days,  the  notary  may  divide  his  proces-verbal,  and  make  as  many  vaca- 
tions or  sittings  as  he  thinks  proper.  lie  can  even  defer  the  closing  of 
it,  if  one  of  the  parties  re(iuires  it,  in  case  any  contestation  arise  on  the 
manner  of  effecting  it,  and  it  becomes  necessary  to  refer  to  the  judge  to 
have  them  terminated  before  proceeding  further. 

Art.  1271. — On  the  day  appointed  for  the  partition,  the  notary 
shall  begin  by  settling  the  accounts  which  each  of  the  heirs  may  owe  to 
the  succession. 

6  A.  561. 

Art.  1272. — The  notary  shall  include  in  these  accounts: 

1.  The  sums  which  each  of  the  co-heirs  owes  to  the  deceased; 

2.  Those  which  each  of  the  coheirs  may  have  received  or  disbursed 
on  account  of  the  succession,  whether  for  the  payment  of  debts  or  for 
necessary  and  useful  expenses  on  the  effects  of  the  succession ; 


182  OF  SUCCESSIONS. 

3.  Those  •nliicli  each  of  the  co-heirs  may  ovrc  by  reason  of  damages 
or  injur}',  which  have  been  caused  by  his  fault  to  the  effects  of  the  sue- 
cession. 

11  L.  262 ;  3  K.  48 ;  4  A.  S ;  5  A.  561. 

Art.  1273. — The  accounts  being  thus  settled,  the  notary  must  de- 
duct from  the  effects  of  the  succession  the  things  which  have  been  be 
queathed  by  the  deceased,  either  to  any  of  the  co-heirs  beyond  his  por- 
tion when  the  collation  is  dispensed  with,  or  to  any  other  persons,  as 
these  things  ought  not  to  be  included  in  the  mass  of  the  effects  to  be 
divided. 

Art.  1274. — If  the  partition  is  to  be  made  between  children  or 
legitimate  descendants  inheriting  from  their  father,  mother  or  other 
ascendant,  and  a  collation  is  to  be  made,  the  notary  shall  cause  the  de- 
cree of  the  judge  to  be  exhibited  to  him,  by  which  it  is  decided  whether 
the  collation  is  to  be  made  in  kind  or  by  taking  less. 

Art.  1275. — -If  the  collation  is  to  be  made  in  kind,  the  notary  is 
bound  to  include  the  property  collated  in  the  number  of  the  effects  of 
the  succession,  for  its  estimated  value,  which  shall  have  been  fixed  by 
experts  appointed  by  the  judge,  as  is  said   above. 

Art.  1276. — If,  on  the  contrary,  the  collation  is  to  be  made  by 
taking  less,  the  notary  shall  add  to  the  credit  of  the  estate  the  sum  due 
by  the  heir  who  is  bound  to  make  the  collation,  according  to  the  appraise- 
ment which  shall  have  been  made  by  experts  appointed  by  the  judge, 
separately  from  the  other  articles  of  the  succession,  in  order  that  the 
other  heirs  may  have  a  sum  of  money,  or  some  object  equal  to  the  esti- 
mated value  of  the  property  subject  to  collation. 

Art.  1277. — The  notary  shall  then  proceed  to  the  formation  of  the 
active  mass  of  the  succession. 

Art.  1273. — This  active  mass  shall  be  composed: 

1.  Of  all  the  movables,  slaves  and  real  estate  of  the  succession, 
which  have  not  been  sold,  mention  being  made  of  their  value,  as  stated 
in  the  inventory  of  the  effects  of  the  succession,  or  in  the  new  appraise- 
ment which  may  have  been  made  by  experts  appointed  by  the  judge ; 

2.  Of  the  price  of  the  movables,  slaves  and  real  estate,  which  have 
been  sold  to  effect  the  partition ; 

3.  Of  all  the  objects  collated  by  the  heirs,  whether  in  kind  or  by 
taking  less,  in  proportion  to  the  appraised  value  given  to  them  by  the 
experts  appointed  by  the  judge ; 

4.  Of  all  the  sums  which  the  heirs  may  owe  to  the  succession,  ac- 
cording to  the  settled  account ; 

5.  Of  all  the  debts  due  to  the  succession  by  other  persons. 

8  E.  48. 


183  OF  succp:ssions.  183 

Art.  1279. — The  active  mass  of  the  succession  being  thus  formed, 
if  there  be  no  colhition,  or  if  the  collations  are  made  in  kind,  the  notary 
proceeds  to  the  deductions  to  be  made  from  the  mass,  in  order  to  ascer- 
tain the  balance  to  be  divided. 

Art.  1280. — By  deduction  is  understood  a  portion  or  thing  which 
an  heir  has  a  right  to  take  from  the  mass  of  the  succession,  before  any 
partition  takes  place. 

Art.  1281. — The  deductions  which  are  to  be  made  before  the  parti- 
tion of  the  succession,  consist : 

1.  Of  the  sums  due  to  one  or  more  of  the  heirs  for  a  debt  due  them 
by  the  deceased,  or  advances  made  to  the  succession,  or  expenses  on  its 
effects,  according  to  the  amount  settled  among  the  heirs ; 

2.  Of  tlie  amount  owing  to  the  heirs  to  whom  a  collation  is  due, 
when  the  collation  is  made  by  taking  less,  in  order  that  the  heirs  may 
receive  a  portion  equal  to  the  amount  of  the  collation  which  is  due ; 

3.  Of  the  privileged  debts  due  or  paid  on  account  of  the  succession, 
which  have  been  incurred  since  the  death  of  the  deceased,  or  in  order  to 
effect  the  partition. 

Art.  1282. — When  the  collations  have  been  made  in  kind,  or  when 
there  is  none  to  be  made,  the  deductions  are  taken  from  the  active 
mass  of  the  succession,  and  the  balance  remaining  forms  the  mass  to  be 
divided. 

Art.  1283. — But  when  the  collation  is  made  fictitiously  and  by 
taking  less,  the  notary  having  formed  the  active  mass  of  the  succession, 
including  the  collation,  deducts  the  sum  at  which  the  property  collated 
is  estimated,  and  on  the  mass  thus  reduced  the  deduction  is  made. 

Art.  1284. — When  the  deduction  wliich  is  to  be  made  in  favor  of 
the  heir  to  whom  the  collation  is  due,  has  been  ascertained  and  esta- 
blished, according  to  the  preceding  article,  if  there  be  among  the  effects 
of  the  succession  any  movables  and  immovables  which  this  heir  wishes 
to  take  at  the  estimated  value,  in  payment  of  the  amount  of  the  collation 
due  to  him,  he  can  take  them  at  his  choice,  and  the  notary  shall  give 
them  to  him. 

Art.  1285. — If  there  be  two  or  more  heirs  who  liave  a  right  to  re- 
ceive the  collation  due  to  them  in  the  property  and  effects  of  the  succes- 
sion, and  they  cannot  agree  on  the  partition  of  the  effects  wliich  they 
have  thus  chosen,  the  notary  shall  appoint  ex}:*rts  to  form  allotments  of 
these  effects,  for  wliich  the  parties  entitled  to  the  collation  shall  ilraw 
lots,  in  the  same  manner  as  is  hereafter  prescribed  for  the  formation 
and  drawing  of  the  lots  of  the  definitive  partition. 

Art.  128G. — When  the  deductions  have  been  made,  and  those  to 
wlmni  the  collations  were  due  have  received  them,  as  is  said  in  the  pre- 
ceding article,  the  notary  divides  what  remains  into  as  many  equal  lots 
as  there  are  heirs  or  roots  entitled  to  a  share. 

Art.  1287. — In  the  formation  and  composition  of  the  lots,  care  must 
be  taken  to  avoid  as  much  as  possible  the  cautling  of  tenement.^,  and 


184  OF  SUCCESSION'S. 

not  to  separate  what  is  necessary  for  the  same  ciiltiratiou.  And  there 
ought  to  be  included,  if  possible,  in  each  lot,  the  same  quantity  of 
movables,  immovables,  rights  and  credits  of  the  same  nature  and  value. 

5  A.  20S. 

Art.  1288. — When  the  lots  are  of  unequal  value,  such  inequality  is 
compensated  by  means  of  a  return  of  money,  which  the  co-heir,  hav 
ing  a  lot  of  more  value  than  the  other,  pays  to  his  co-heirs. 

Art.  1289. — The  lots  are  formed  by  experts  chosen  for  that  purpose, 
and  sworn  by  the  notai'y  charged  with  the  partition,  and  are  afterwards 
drawn  for  by  the  co-heirs. 

4  A.  9. 

Art.  1290. — If,  in  the  course  of  a  partition  referred  to  a  notary, 
contestations  should  arise,  the  notary  shall  make  a  proces-verbal  of  the 
objections  and  declarations  of  the  parties,  suspend  his  proceedings  and 
refer  the  parties  to  the  judge  having  cognizance  of  the  partition,  for  his 
decision  thereon. 

11  L.  404 ;  12  E.  315 ;  4  A.  9  ;  See  1  R.  415 ;  11  L.  439. 

Art.  1291. — If  there  are  several  minors  who  have  opposite  inter- 
ests in  the  partition,  and  who  have  the  same  tutor  and  curator,  there 
shall  be  appointed  to  each  of  them  a  special  tutor,  whose  functions  shall 
cease  as  soon  as  the  partition  is  terminated. 

Emancipated  minors  must  also  be  assisted  by  a  special  curator  dur- 
ing the  proceeding  of  the  partition  before  the  notary. 

1  E.  512  ;  5  A.  20S. 

Art.  1292. — The  rules  established  for  the  division  of  estates  to  be 
divided,  are  equally  applicable  to  the  sub- divisions  to  be  made  between 
the  individual  co-proprietors  claiming  under  the  same  root. 

2  A.  T49. 

Art.  1293.^No  partition  is  made  of  the  passive  debts  of  the  suc- 
cession, each  heir  remains  bound  for  the  part  he  takes  in  the  succession ; 
but  in  order  to  equalize  the  shares,  those  heirs  who  take  the  largest 
allotments  may  be  charged  with  the  payment  of  a  larger  portion  of  the 
debts. 

Art.  1294. — Partitions  made  agreeably  to  the  above  rules  by  tutors 
or  curators  of  minors,  or  by  curators  of  interdicted  or  absent  persons, 
are  definitive ;  but  they  are  only  provisional,  if  the  rules  have  not  been 
observed. 

Art.  1295. — When  the  partition  is  only  provisional,  absentees,  mi- 
nors, persons  interdicted,  and  married  women  may,  if  they  find  them- 
selves injured  thereby,  demand  that  another  be  made,  as  provided  by 
the  section  relative  to  the  res6ission  of  partitions. 

A  minor  may  institute  this  action  even  before  he  attains  the  age  of 
majority,  but  a  married  woman  cannot  attack  the  provisional  partition 
made  by  her  husband  until  the  dissolution  of  their  community. 

Art.  1296. — When  the  partition  has  been  terminated  by  the  no- 
tary, one  of  the  parties  must  deposit  an  authentic  copy  thereof  in  the 
office  of  the  judge  who  has  ordered  the  partition,  and  make  a  motion 
that  his  co-heirs  be  summoned  to  show  cause,  if  any  they  have,  in  ten 
days  after  notice  of  the  order  of  the  judge  to  that  effect,  why  the  parti- 
tion should  not  be  homologated. 

6  N.  S.  350;  16  L.  157 ;  See  12  E.  815. 


185  OF  SUCCESSIONS.  186 

Art.  1297. — If  the  co-heirs,  thus  notified,  have  any  objections  to 
make  against  the  manner  in  which  the  partition  has  been  made,  they 
are  bound  to  file  a  written  opposition  to  the  homologation,  within  the 
time  given  them  for  that  purpose,  and  they  are  bound  to  state  in  that 
opposition  the  errors,  vices,  and  irregularities  which  they  believe  the 
partition  contains  to  their  prejudice. 

1  K.  415 ;  6  N.  S.  350 ;  See  12  K.  815. 

Art.  1298. — If  the  judge  finds  that  this  opposition  is  well  founded 
in  whole  or  in  part,  he  shall  order  the  partition  to  be  rectified  accord- 
ingly, and  shall  refer  the  parties  to  the  notary  who  shall  make  a  supple- 
mentary act  of  partition  in  conformity  with  the  decision  of  the  judge 
of  which  an  authentic  copy  shall  be  deposited  in  the  office  of  the  judge 
in  the  same  manner  as  the  original  act  is  ordered  to  be  deposited. 

Seel2E.  815;  C.  P.  1031. 

Art.  1299. — If,  on  the  contrary,  the  judge  finds  that  the  opposition 
of  the  co-heirs  is  not  well  founded,  he  shall  order  the  act  of  partition 
to  be  homologated,  which  shall  be  final  between  the  parties,  provided 
the  formalities  of  the  law  have  been  fulfilled. 

16  L.  15T. 

Art.  1300. — The  form  in  which  the  notary  is  directed  to  make  the 
act  of  partition,  as  is  above  described,  is  not  a  matter  of  such  strict  law 
that  nullity  results  from  the  act,  in  ease  of  this  officer  making  any 
change  in  the  form ;  provided  all  the  provisions  of  the  law  relating  to 
the  formation  of  the  accounts  between  the  parties,  the  deductions  the 
composition  of  the  mass  of  the  succession,  the  appointment  and  oaths 
of  the  experts,  the  making  and  drawing  of  the  lots,  have  been  observed 
in  the  partition,  and  the  parties  interested  therein,  or  their  representa- 
tives, have  been  duly  notified  to  be  present  at  the  same. 

Art.  1301. — After  the  partition,  delivery  must  be  made  to  each  of 
the  co-heirs  of  the  title  papers  of  the  objects  fallen  to  his  share. 

The  title  papers  of  a  divided  property  remain  in  the  possession  of 
the  heir  who  has  the  most  considerable  part  of  it,  under  the  obligation 
of  producing  them,  when  required  by  the  co-proprietors  of  the  other 
part  of  the  property. 

Titles  common  to  the  whole  inheritance  shall  be  delivered  to  the 
person  chosen  by  all  tlic  heirs  to  be  the  depositary  of  them,  on  condi- 
tion of  producing  them  as  often  as  required.  If  they  should  not  agree 
on  that  choice,  such  deposit  shall  be  made  by  the  order  of  the  judge. 

Art.  1302. — If,  after  the  partition,  a  discovery  should  be  made  of 
some  property  not  included  in  it,  the  partition  must  be  amended  or  made 
over  again,  either  in  totality,  or  of  the  discovered  property  alone. 

Art.  1303. — If,  after  the  partition,  an  heir  appears,  whose  death 
has  been  presumed  on  account  of  his  long  absence,  or  whose  right  was 
not  known,  as  if  a  second  testament  unknown  until  then,  should  entitle 
him  to  inherit  with  tlie  otlicrs,  the  first  partition  must  be  annulled,  and 
another  must  be  made  of  all  the  property  remaining  in  kind,  and  of  the 
value  of  whatever  has  been  consumed  or  alienated,  in  order  that  he  may 
have  the  share  of  the  whole  to  which  he  is  entitled. 

Art.  1304. — All  the  rules  established  in  the  present  section,  with 
the  exception  of  that  which  relates  to  the  collations,  are  applicable  to 


186  OF  SUCCESSIONS. 

partitions  between  co-proprietors  of  tlie  same  thing,  when  among  tlie 
co-proprietors  any  are  absent,  minors,  or  interdicted,  or  when  tlie  co- 
proprietors  of  age  and  present  cannot  agree  on  the  partition  and  on  the 
manner  of  making  it. 

But  in  these  kinds  of  partition,  the  action  must  be  brought  before 
the  judge  of  the  place  where  the  property  to  be  divided  is  situated, 
wherever  the  parties  interested  may  be  domiciliated. 

2  A.  829 ;  S  L.  202  ;  19  L.  557 ;  5  N.  S.  551 ;  Seo  C.  P.  1G5 ;  3  N.  S.  553. 


Section  II. —  Of  Collations. 

§  1. —  What  Collation  is^  and  hy  icliom  it  is  due. 

Art.  130."5. — The  collation  of  goods  is  the  supposed  or  real  return 
to  the  mass  of  the  succession,  which  an  heir  makes  of  property  which 
he  received  in  advance  of  his  share  or  otherwise,  in  order  that  such 
property  may  be  divided  together  with  the  other  eifects  of  the  succes- 
sion. 

4N.  S.  .557;  8  L.  228. 

Art.  1306. — Children  or  grandchildren,  coming  to  the  succession  of 
their  fathers,  mothers,  or  other  ascendants,  must  collate  what  they  have 
received  from  them  by  donation  inter  vivos.,  directly  or  indirectly,  and 
they  cannot  claim  the  legacies  made  to  them  by  such  ascendants,  unless 
the  donations  and  legacies  have  been  made  to  them  expressly  as  an  ad- 
vantage over  their  co-heirs,  and  besides  their  portion. 

This  rule  takes  place  whether  the  children  or  their  descendants  suc- 
ceed to  their  ascendants  as  legal  or  as  testamentary  heirs,  and  whether 
they  have  accepted  the  succession  unconditionally,  or  with  the  benefit  of 
inventory. 

5  N.  S.  223 ;  12  E.  589. 

Art.  1307. — The  obligation  of  collating  is  founded  on  the  equality 
which  must  be  naturally  observed  between  children  and  other  lawful 
descendants,  who  divide  among  them  the  succession  of  their  father, 
mother,  and  other  ascendants ;  and  also  on  the  presumption  that  what 
was  given  or  bequeathed  to  children  by  their  ascendants,  was  so  dis- 
posed of  in  advance  of  what  they  might  one  day  exjject  from  their  suc- 
cession. 

12  M.  421 ;  7  E.  429  ;  12  R.  509. 

Art.  1308. — Collation  must  take  place  whether  the  donor  has  for- 
mally ordered  it,  or  has  remained  silent  on  the  subject ;  for  collation  is 
always  presumed,  where  it  has  not  been  expressly  forbidden. 

Art.  1300. — But  things  given  or  bequeathed  to  children  or  other 
descendants  by  their  ascendants,  shall  not  be  collated,  if  the  donor  has 
formally  expressed  his  will,  that  what  he  thus  gave,  was  an  advantage 
or  extra  part,  unless  the  value  of  the  object  given  exceed  the  disposable 
portion,  in  which  case  the  excess  is  subject  to  collation. 

7  R.  429.  , 

Art.  1310. — The  declaration  that  the  gift  or  legacy  is  made,  as  an 
advantage  or  extra  portion,  may  be  made,  not  only  in  the  instrument 
where  such  disposition  is  contained,  but  even  afterwards  by  an  act  pass- 
ed before  a  notar\  and  two  witnesses. 


187 


OF  SUCCESSIOlNbJ.  187 


Art.  1311.— The  declaration  that  the  gift  or  legacy  is  intenled  aa 
an  advantage  or  extra  portion,  may  be  made  in  other  equivalent  terms, 
provided  they  indicate,  in  an  unequivocal  manner,  that  such  was  the  will 

of  the  donor.  n     ^       .  ^i 

Art.  1312. If,  upon  calculation  of  the  value  of  advantages  thus 

given,  and  of  the  other  effects  remaining  in  the  succession,  such  remain- 
ing part  should  prove  insufficient  to  give  to  the  other  children  their  legiti- 
mate portion,  the  donee  would  then  be  obliged  to  collate  the  sum  by  him 
received,  as  far  as  necessary  to  complete  such  portion,  though  he_  would 
wish  to  keep  the  donation  and  renounce  the  inheritance ;  and  in  this 
calculation  of  the  legitimate  portion,  the  property  given  or  bcpieathed 
by  the  ascendants,  not  only  to  their  children,  but  even  to  all  other  per- 
sons, whether  relations  or  strangers,  must  be  included. 

See  7  Pv.  429. 

Art.  1313.— The  obligation  of  collating  is  confined  to  children  or 
descendants  succeeding  to  their  fathers  and  mothers  or  other  ascendants, 
whether  ab  intcstato  or  by  virtue  of  a  testament. 

Therefore  this  collation  cannot 'be  demanded  by  any  other  heir,  nor 
even  by  the  legatees  or  creditors  of  the  succession  to  which  the  collation 
is  due. 

Sec  7  R.  429. 

Art.  1314. — Such  children  or  descendants  only  are  obliged  to  collate, 
who  have  a  right  to  a  legitimate  portion  in  the  succession  of  their  fa- 
thers, or  mothers,  or  other  ascendants. 

Therefore  natural  children,  inheriting  from  their  mother  or  fothcr,  m 
the  cases  prescribed  by  law,  are  not  liable  to  any  collation  between  them, 
if  they  have  not  been  exprassly  subjected  to  it  by  the  donor,  because 
the  law  gives  them  no  right  to  a  legitimate  portion  in  their  succes- 
sions. 1     1  T 

Art.  131.5.— If  children,  or  other  lawful  descendants  holding  pro- 
perty or  legacies  to  be  collated,  should  renounce  the  inheritance  of  the 
ascendant,  from  whom  they  have  received  such  property,  they  may  re- 
tain the  gift,  or  claim  tlie  legacy  to  them  made,  without  being  subject  to 
any  collation. 

"  If,  however,  the  remaining  amount  of  the  inheritance  should  not  he 
sufficient  for  the  legitimate  portion  of  the  other  children,  including  \\\ 
the  estate  of  the  deceased  tlie  property  which  the  person  renouncing 
would  have  collated,  had  he  become  heiu,  he  shall  then  be  obliged  to 
collate  up  to  the  sum  necessary  to  complete  such  legitimate  portion. 

Art.  131G. To  make  legitimate  descendants  liable  to  collation,  as 

prescribed  in  the  preceding  articles,  they  must  appear  in  the  quality  of 
heirs  to  tlie  succession  of  the  ascendant  from  whom  they  immediately 
have  received  the  gift  or  legacy. 

Therefore,  grandchildren,  to  whom  a  gift  was  made  or  a  legacy  iett 
by  their  grandfather  or  grandmother,  after  the  death  of  their  father  or 
mother,  arc  obliged  to  collate,  when  they  are  called  to  the  inheritance  of 
the  grandfather  or  grandmother,  jointly  with  the  other  grandchildren, 
or  by  representation  with  their  uncles  or  aunts,  brothers  or  sisters  of 
their  father  or  mother,  because  a  legitimate  portion  is  due  to  them  in  the 
estate  of  their  grandfather  or  grandmother,  ou  which  it  is  presumed  that 


188  OF  SUCCESSIONS. 

their  grandfather  or  grandmother  had  intended  to  make  the  gift,  or  leav« 
the  legacy  by  anticipation. 

4  N.  S.  557 ;  12  L.  5S9. 

Art.  1317. — But  gifts  made  or  legacies  left  to  a  grandchild  by  his 
grandfather  or  grandmother  during  the  life  of  his  father,  are  ahvays  re- 
puted to  be  exempt  from  collation,  because,  while  the  father  is  alive, 
there  is  no  legitimate  portion  due  to  the  grandchild  in  the  estate  of  his 
grandfather. 

The  father,  inheriting  from  the  grandfather,  is  not  liable  to  collate 
tho  gifts  or  legacies  left  to  his  child. 

12  L.  589. 

Art.  1318. — In  like  manner,  the  grandchild,  when  inheriting  in  liis 
own  right  from  the  grandfather  or  grandmother,  is  not  obliged  to  refund 
the  gifts  made  to  his  father,  even  though  he  should  have  accepted  his 
succession ;  but  if  the  grandchild  comes  in  only  by  right  of  representa- 
tion, he  must  collate  what  had  been  given  to  his  father,  even  though  he 
should  have  renounced  his  inheritance. 

4  N.  S.  55T ;  8  L.  228. 

Art.  1319. — What  has  been  said  in  the  three  preceding  articles,  of 
grandchildren  inheriting  from  their  grandfather  or  grandmother,  must 
be  understood  of  the  great-grandchildren  and  other  lawful  descendants 
called  to  inherit  from  their  ascendants,  either  in  their  own  name  or  by 
right  of  representation. 


§  2. — To  wliom  the  Collation  is  due,  and  ichat  things  are  suhjcct  to  it. 

Art.  1320. — The  collation  is  only  made  to  the  succession  of  the 
donor. 

Thus,  in  case  of  a  father  having  alone  settled  a  dowry  on  one  of  his 
children,  the  collation  is  only  due  to  his  succession.  But,  if  the  father 
and  mother  have  jointly  settled  the  dowry,  the  collation  is  to  be  made 
by  halves  to  each  of  their  successions,  conformably  to  the  rules  esta- 
blished in  the  title  of  the  marriage  contract. 

2  A.  C30 ;  5  N.  S.  228. 

Art.  1321. — Collation  is  due  for  what  has  been  expended  by  the 
father  and  mother  to  procure  an  establishment  for  their  legitimate  de- 
scendant coming  to  their  succession,  for  the  settlement  of  dowry,  or  for 
the  payment  of  his  debts. 

Art.  1322. — Neither  the  expenses  of  board,  support,  education  or 
apprenticeship  are  subject  to  collation,  nor  are  marriage  presents  which 
do  not  exceed  the  disposable  portion. 

6  N.  8.  148. 

Art.  1323. — The  same  rule  is  establis'ned  with  respect  to  things 
given  by  a  father,  mother,  or  other  ascendant,  by  their  own  hands  to  one 
of  their  children  for  his  pleasure  or  other  use. 

Art.  1324.— The  heir  is  not  bound  to  collate  the  profits  he  has 
made  from  contracts  made  with  his  ascendant  to  whom  he  succeeds,  un- 
less the  contracts,  at  the  time  of  their  being  made,  gave  the  heir  some 
indirect  advantage. 


189  OF  SUCCESSIONS.  189 

Art.  1325. — Also  no  collation  is  due  for  a  partnei'sliip  made  with- 
out fraud  with  the  deceased,  if  the  conditions  of  the  partnership  are 
proved  by  an  authentic  act. 

Art.  1326. — The  advantage  which  a  father  bestows  on  his  son, 
though  in  any  other  manner  than  by  donation  or  legacy,  is  likewise  sub- 
ject to  collation.  Thus,  when  a  father  has  sold  a  thing  to  his  son  at  a 
very  low  price,  or  has  paid  for  him  the  price  of  some  purchase,  or 
has  spent  money  to  improve  his  son's  estate,  all  that  is  subject  to  colla- 
tion. 

Art.  1327. — The  obligation  of  collation  does  not  exclude  the  child 
or  descendant,  coming  to  the  succession  of  his  father,  mother,  or  other 
ascendant,  from  claiming  wages  which  may  be  due  to  him  for  having 
administered  the  property  of  the  ascendant  or  for  other  services. 

Art.  1328. — Ileal  estate  given  by  a  father,  mother,  or  other  ascend- 
ant, to  one  of  their  children  or  descendants,  and  which  has  been  destroy- 
ed by  accident  while  in  the  possession  of  the  donee,  and  without  his 
fault,  previous  to  the  opening  of  the  succession,  is  not  subject  to  colla 
tion. 

If,  on  the  contrary,  it  is  by  the  fault  or  negligence  of  the  donee  that 
the  real  estate  has  been  destroyed,  he  is  bound  to  collate  to  the  amount 
of  the  value  which  the  estate  would  have  had  at  the  time  of  the  opening 
of  the  succession. 

§  3. — How  Collations  are  made. 

Art.  1329. — Collations  are  made  in  kind  or  by  taking  less. 

Art.  1330. — The  collation  is  made  in  kind  when  the  thing  which  has 
been  given,  is  delivered  up  by  the  donee  to  be  united  to  the  mass  of 
the  succession. 

Art.  1331. — The  collation  is  made  by  taking  less,  when  the  donee 
diminishes  the  portion  he  inherits,  in  proportion  to  the  value  of  the  ob- 
ject he  has  received,  and  takes  so  much  less  from  the  surplus  of  the 
effects  of  the  succession,  which  is  carried  into  effect  as  is  explained  in 
the  section  which  treats  of  partitions. 

Art.  1332. — In  the  execution  of  the  collation  it  must  first  be  con- 
sidered whether  the  things  subject  to  it  are  movables,  real  estate,  or 
slaves. 

6  L.  17. 

Art.  1333. — If  a  real  estate  has  been  given,  and  the  donee  hath  it 
in  his  possession  at  the  time  of  the  partition,  he  has  the  choice  to  make 
the  collation  in  kind  or  by  taking  less,  unless  the  donor  has  imposed  on 
him  the  condition  of  making  the  collation  in  kind,  in  which  case  it  can- 
not be  made  in  any  other  manner  than  that  prescribed  by  the  donor,  un- 
less it  be  with  the  consent  of  the  other  heirs,  who  must  be  all  of  age, 
present,  or  represented  in  this  State. 

7  N.  S.  20. 

Art.  1334. — The  donee  who  collates  real  estate,  which  has  been 
given  to  him  in  kind,  must  be  reimbursed  by  his  co-heirs  for  the  ex- 
penses which  have  improved  the  estate,  in  proportion  to  the  increase  of 
value  which  it  has  received  thereby. 

Art.  1335. — The  co-heirs  arc  bound   to  allow  to  the  donee  the  ne- 


190  OF  SUCCESSIONS. 

cessary  expenses  which  he  has  incurred  for  the  preservation  of  the  estate 
though  they  may  not  have  augmented  its  value. 

Art.  1336. — As  to  works  made  on  the  estate  for  the  mere  pleasure 
of  the  donee,  no  reimbursement  is  due  to  him  for  them,  he  has  however 
the  right  to  take  them  away,  if  he  can  do  it  without  injuring  the  estate 
and  leave  things  in  the  same  situation  they  were  at  tlie  time  of  the  do- 
nation. 

Ar.t  1337. — Expenses  made  on  real  estates  are  distinguished  into 
three  kinds  ;  necessary,  "useful,  and  those  for  mere  pleasure. 

Necessary  expenses  are  those  which  are  indispensable  to  the  preser- 
vation of  the  tiling; 

Useful  expenses  are  those  which  increase  the  value  of  the  estate,  but 
without  which  tlie  estate  can  be  preserved  ; 

Expenses  for  mere  pleasure  are  those  which  are  only  made  for  the 
accommodation  or  convenience  of  the  proprietor  or  possessor  of  the 
estate,  and  which  do  not  increase  its  value. 

Art.  1338. — The  donee  who  collates  in  kind  the  real  estate  given  to 
him,  is  accountable  for  the  deteriorations  and  damage  which  have  dimin- 
ished its  value,  when  caused  by  his  fault  or  negligence. 

Art.  1339. — If  within  the  time  and  in  the  form  prescribed  in  the 
section  which  treats  of  partitions,  the  donee  has  made  his  election  to 
collate  in  kind  the  real  estate  which  has  been  given  to  him,  and  it  is 
afterwards  ddltroyed,  without  the  act  or  fault  of  the  donee,  the  loss  is 
borne  by  the  succession,  and  the  donee  shall  not  be  bound  to  collate  the 
value  of  the  estate. 

Art.  1340. — If  the  real  estate  be  only  destroyed  in  part,  it  shall  be 
collated  in  the  state  in  which  it  is. 

Art.  1341. — But  if  the  real  estate  is  destroyed  after  the  donee  has 
declared  that  he  wishes  to  collate  by  taking  less,  the  loss  is  his,  and  he 
is  bound  to  take  less  from  the  succession  in  the  same  manner  as  if  the 
estate  had  not  been  destroyed. 

Art.  1342. — When  the  collation  is  made  in  kind,  the  elFccts  are 
united  to  the  mass  of  inlieritance  free  from  all  charges  created  by  the 
donee,  but  creditors,  liolding  mortgages,  may  intervene  in  the  partition, 
and  make  opposition  to  the  collation  which  may  injure  their  rights. 

12  E.  450. 

Art.  1343. — In  the  case  mentioned  in  the  preceding  article,  if  the 
property  mortgaged,  which  has  been  collated  in  kind,  falls  by  the  parti- 
tion to  the  donee,  the  mortgage  continues  to  exist  thereon  as  if  it  had 
never  been  collated  ;  but  if  the  donee  receives  for  his  portion  other 
movables  or  immovables  of  the  succession,  the  creditor  sliall  have  a  pri- 
vilege for  the  amount  of  his  mortgage  on  the  property  which  has  thus 
fallen  to  his  debtor  by  the  partition. 

12  K.  450. 

Art.  1344. — When  the  gift  of  a  real  estate,  made  to  a  lawful  child 
or  descendant,  exceeds  the  portion  which  the  ascendant  could  legally 
dispose  of,  the  donee  may  make  the  collation  of  this  excess  in  kind,  if 
such  excess  can  be  separated  conveniently. 


over  an 


Art.  134.5. — If,  on  the  contrary,  the  retrenchment  of  the  excess 
r  and  above  the  disposable  portion  cannot  conveniently  be  made,  the 


191  OF  SUCCESSIONS.  19 

donee  is  bound  to  collate  the  excess  by  taking  less,  as  is  hei'cafter  pre 
scribed  for  the  cases  in  which  the  collation  is  made  of  real  estate  giver 
him  otherwise  than  as  an  advantage  or  extra  ijortion. 

Art.  1346. — The  donee,  who  makes  the  collation  in  kind  of  the  real 
estate  given  to  him,  may  keep  possession  of  the  same,  until  the  final 
reimbursement  of  tlie  sums  to  him  due  for  the  nccessai'y  and  useful  ex- 
penses, which  he  has  made  thereon,  after  deducting  the  amount  of  the 
damage  the  estate  has  suffered  through  his  fault  or  neglect,  as  is  before 
provided. 

AuT.  1347. — When  the  donee  has  elected  to  collate  the  real  estate 
given  him  by  taking  less  on  the  part  which  comes  to  him  from  the  suc- 
cession, the  collation  must  be  made  according  to  the  value  wliich  the 
real  estate  had  at  the  opening  of  the  succession,  a  deduction  being  made 
for  the  expenses  incurred  thereon,  in  conformity  with  what  has  been 
heretofore  prescribed. 

Art.  1348. — If  the  donee  has  voluntarily  alienated  the  real  estate 
which  has  been  given  him  as  an  advantage  or  extra  portion,  if  he  has 
permitted  it  to  be  seized  and  sold  for  the  payment  of  his  debts,  or  if  it 
has  been  destroyed  by  his  fault  or  negligence,  he  shall  not  be  the  less 
bound  to  make  the  collation  of  it,  according  to  the  value  which  the  es- 
tate would  have  had  at  the  time  of  the  opening  of  the  succession,  de- 
ducting expenses,  as  is  provided  in  the  foregoing  article. 

Art.  1349. — But  if  the  donee  has  been  forced  to  alienate  the  real 
estate,  he  shall  be  obliged  to  collate  by  taking  less,  the  price  he  has 
received  from  this  sale  and  no  more. 

As,  for  example,  if  the  donee  shall  be  obliged  to  submit  to  a  sale 
of  the  estate  for  some  object  of  public  utility,  or  to  discharge  a  mort- 
gage imposed  by  the  donor,  or  because  the  estate  was  held  in  common 
with  another  person  who  has  prayed  for  the  sale  in  order  to  obtain  a 
partition  of  it. 

Art.  1350. — -If  the  real  estate,  which  has  been  given,  has  beei\  sold 
by  the  donee,  and  afterwards  is  destroyed  by  accident  in  the  possession 
of  the  purchaser,  the  donor  shall  only  be  obliged  to  collate,  by  taking 
less,  the  price  he  received  for  the  sale. 

Art.  1351. — -AVhcn  the  collation  is  made  by  taking  less,  the  co-heirs 
to  whom  the  collation  is  due,  have  a  right  to  require  a  sale  of  tlie  pro- 
perty remaining  to  the  succession,  to  be  paid  from  the  proceeds  of  this 
sale,  not  only  the  collation  which  is  due  to  them,  but  the  part  which 
comes  to  them  from  the  surplus  of  these  proceeds,  unless  they  prefer  to 
pay  tliemselves  the  amount  of  the  collation  due  to  them,  by  taking  such 
movables  and  immovables  of  the  succession  as  they  may  choose,  accord- 
ing to  the  appraisjement  in  the  inventory,  or  the  appraisement  which 
serves  as  a  basis  to  the  partition. 

Art.  1352. — If  the  co-heirs,  to  whom  the  collation  is  made  by  taking 
less,  wi.sh  that  the  effects  of  the  succession  be  sold,  in  order  that  they 
may  be  paid  wluit  is  due  them,  they  are  bound  to  decide  thereon,  in 
three  days  from  tlicir  being  notified  of  the  motion  of  the  donee  to  that 
effect,  before  the  judge  of  the  partition,  otherwise  they  shall  be  deprived 
of  this  right,  and  shall  be  considered  as  having  con.sented  to  receive 
payment  of  the  collation  due  them  in  effects  and  property  of  the  succes- 
sion, or  otherwise,  from  the  hands  of  the  donee. 


192  OF  SUCCESSIONS 

Art.  13u3. — "When  the  co-heirs,  thus  notified,  require  the  sale  of 
the  eflFects  of  the  succession  to  pay  themselves  the  collation  due  them, 
the  sale  shall  be  made  at  public  auction,  in  the  same  manner  as  when  it 
is  necessary  to  sell  property  held  in  common,  in  order  to  effect  a  parti- 
tion. 

Art.  1354. — If,  on  the  contrary,  the  co-heirs  to  whom  the  collation 
is  due,  prefer  to  be  paid  the  amount  thereof  in  property  and  effects  of 
the  succession,  or  are  divested  of  their  right  to  require  the  sale  of  these 
effects,  they  shall  be  paid  the  amount  of  the  collation  in  movables,  im 
movables  and  other  effects  of  the  succession,  in  the  same  manner  as  it 
prescribed  in  the  section  which  treats  fj/'^wr/vV/o^^s. 

But  in  no  case  will  these  heirs  be  obliged  to  receive  in  payment 
ci'edits  of  the  succession. 

Art.  1355. — If  there  are  no  effects  in  the  succession,  or  not  suffi- 
cient to  satisfy  the  heirs  to  whom  the  collation  is  due,  the  amount  of  the 
collation,  or  the  balance  due  on  it,  shall  be  paid  them  by  the  heir  who 
owes  the  collation. 

Art.  1356. — This  heir  shall  have  one  year  to  pay  the  sum  thus  by 
him  due,  if  he  furnish  his  co-heirs  with  his  obligation  payable  at  that 
time,  with  ten  per  cent,  interest,  and  give  a  special  mortgage  to  secure 
the  payment  thereof,  either  on  the  real  estate  subject  to  the  collation, 
if  it  is  in  his  possession,  or  in  want  thereof,  on  some  other  immovable 
property  which  may  suit  the  co-heirs. 

See  amendment  to  Art.  2S95. 

Art.  1357. — If  the  heir,  who  has  been  allowed  to  furnish  his  obliga- 
tion as  mentioned  in  the  preceding  article,  fails  to  fulfil  his  engagement 
at  the  expiration  of  the  year  granted  to  him,  the  heirs,  in  whose  favor 
this  obligation  has  been  made,  or  their  representatives,  have  a  right  to 
cause  the  property  mortgaged  to  them  to  be  seized  and  sold,  without 
any  appraisement,  and  at  the  price  offered  at  the  first  exposure  for  sale. 

Art.  1358. — If  the  property,  thus  seized  and  sold,  is  the  same 
which  was  subject  to  the  collation,  the  co-heirs  seizing,  or  their  repre- 
sentatives, shall  be  paid  the  amount  of  their  debt  due  for  the  collation, 
by  privilege  and  in  preference  to  all  the  creditors  of  the  donee,  even  to 
those  to  whom  he  may  have  mortgaged  the  property  for  his  own  debts 
or  engagements,  previous  to  the  opening  of  the  succession,  saving  to 
these  mortgage  creditors  their  recourse  against  other  property  of  the 
donee. 

Art.  1359. — If  the  donee,  who  owes  the  collation,  has,  before  the 
opening  of  the  succession,  voluntarily  sold  the  real  estate  given  to  him, 
and  his  other  property  is  not  sufficient  to  satisfy  his  co-heirs  for  the 
collation  due  them,  the  co-heirs,  after  a  previous  discussion  of  the  effects 
of  the  donee,  shall  have  the  right  of  claiming  the  real  estate  thus  sold, 
from  those  wlio  may  be  the  purchasers  or  detainers  thereof,  who  shall 
be  compelled  to  give  it  up  as  an  object  which  had  never  belonged  to  the 
donee. 

Art.  1300. — The  third  purchaser  or  possessor  of  the  real  estate 
subject  to  collation  may  avoid  the  effect  of  the  action  of  the  revendica- 
tion,  by  paying  to  the  co-heirs  of  the  donee,  to  whom  the  collation  is 
due,  to  wit :  the  excess  of  the  value  of  the  property  above  the  disposable 


193  OF  SUCCESSIONS.  •  193 

portion,  if  the  donation  has  been  made  as  an  advantage  or  extra  portion, 
or  the  whole  of  the  value  thereof,  if  the  donatioii  has  been  made  without 
this  provision,  by  fulfilling  in  this  respect  all  the  obligations  by  which 
the  donee  himself  was  bound  towards  the  co-heirs. 

Art.  13G1. — When  slaves  have  been  given,  the  donee  is  not  per- 
mitted to  collate  them  in  kind ;  he  is  bouiul  to  collate  for  them  by 
taking  less,  according  to  the  value  of  the  slaves  at  the  time  of  the 
donation. 

14  L.  352. 

Art.  1362. — Therefore  the  donation  of  slaves  contains  an  absolute 
transfer  of  the  rights  of  the  donor  to  the  donee  in  the  slaves  thus  given. 
They  are  at  the  risk  of  the  donee,  who  is  bound  to  support  their  loss  or 
deterioration,  at  the  same  time  that  he  profits  by  the  children  born  of 
them  ;  and  if  the  donee  dispose  in  good  faith  of  all  or  any  of  the  slaves, 
the  action  of  revcndication  for  recovering  the  slaves  on  the  part  of  his 
co-heirs  for  the  collation  due  to  them,  will  not  lie  against  those  who  are 
the  purchasers  or  liolders  of  the  slaves. 

11  L.  353. 

Art.  1363. — The  dispositions,  contained  in  the  two  preceding  arti- 
cles, also  take  effect,  when  the  donation,  subject  to  the  collation,  consists 
in  movable  eff"ects ;  the  only  difference  is  that  the  collation  of  movables 
given,  must  be  according  to  their  appraised  value,  if  there  be  any 
annexed  to  the  donation,  and,  in  default  thereof,  recourse  may  be  had 
to  other  evidence  to  establish  the  value  of  these  movables  at  the  time 
of  the  donation. 

Art.  1364. — The  collation  of  money  may  be  made  in  specie,  or  by 
taking  less,  at  the  choice  of  the  donee  who  is  bound  to  decide  thereon, 
in  the  same  manner  as  is  prescribed  for  the  collation  of  real  estate. 

Art.  1365. — If  it  be  slaves,  movables  or  money,  of  which  the  donee 
wishes  to  make  the  collation  by  taking  less,  he  has  the  right  of  com- 
pelling his  co-heirs  to  pay  themselves  the  collation  due  to  them  in 
money,  and  not  otherwise,  if  there  be  sufficient  in  the  succession  to 
make  these  payments  with. 

Art.  1366. — But  if  there  is  not  sufficient  money  in  the  succession 
to  pay  such  heirs  the  collation  due  to  them,  they  shall  pay  themselves 
by  taking  an  equivalent  in  the  other  movables  or  immovables  of  the 
succession,  as  is  directed  with  respect  to  the  collation  of  real  estate. 

Art.  1367. — In  case  there  be  no  property  or  eff"ectsin  the  succession 
to  satisfy  the  collations  due  for  slaves,  movables  or  money  given,  the 
donee  shall  have,  for  the  payment  of  the  sum  due  to  his  co-heirs,  the 
same  terms  of  payment  as  are  given  for  the  payment  of  the  amount  of 
collations  of  real  estate,  and  under  the  same  conditions  as  are  before 
prescribed. 


Section  III. — Of  the  Payment  of  Debts. 

Art.  1368. — There  are  two  principal  things  to  be  considered  relative 
to  the  payment  of  the  debts  of  a  succession  : 
13 


194  OF  SUCCESSIONS. 

1.  The  actions  of  tlie  creditors  to  cause  themselves  to  be  paid  what 
is  due  them,  and  the  persons  against  whom  these  actions  can  be  brought ; 

2.  The  contribution  which  is  to  be  made  between  these  latter 
persons. 

Art.  1369. — Contribution  is  the  division  which  is  made,  among  the 
heirs  of  the  succession,  of  the  debts  with  which  the  succession  is  charged, 
according  to  the  proportion  which  each  is  bound  to  bear. 

Art.  1370. — The  creditors  of  a  succession  haA^e  three  kinds  of  action 
to  cause  themselves  to  be  paid  the  debts  due  them  by  the  deceased,  to 
wit: 

1.  A  personal  action  against  the  heirs,  or  those  who  stand  in  the 
place  of  heirs ; 

2.  An  hypothecary  action  against  the  detainers  or  possessors  of  the 
property  mortgaged  for  their  debts ; 

3.  And  the  action  of  the  separation  of  the  patrimony  of  the  deceased 
from  that  of  the  heir. 

1  A.  228;  §2;  1  jV.  204;  2  A.  462. 

■  Art.  1371. — The  personal  action,  which  the  creditors  of  a  succession 
can  exercise  against  the  heirs,  has  for  its  basis  the  obligation,  which  the 
heirs  are  under,  to  discharge  the  debts  of  the  deceased. 

This  action  is  modified  according  as  the  deceased  has  left  one  or 
several  heirs. 

Art.  1372. — The  heirs  by  the  fact  alone  of  the  simple  acceptance 
of  a  succession  left  them,  contract  the  obligation  to  discharge  all  the 
debts  of  such  succession,  to  whatever  sum  they  may  amount,  though 
they  fur  exceed  the  value  of  the  effects  composing  it.* 

This  rale  has  no  exception,  but  when  the  heirs,  before  meddling  with 
the  succession  have  caused  a  true  and  faithful  inventory  thereof  to  be 
made,  as  is  prescribed  in  the  section  of  this  title  which  relates  to  the 
acceptance  of  successions  and  the  benefit  of  inventory ;  for  in  this  case 
they  are  only  bound  for  the  debts  to  the  amount  of  the  value  of  the 
eflFects  found  in  the  succession. 

Art.  1373. — Universal  legatees,  or  legatees  under  an  universal  title, 
being  in  every  respect  assimilated  to  heirs,  are  subject  to  the  payment 
of  the  debts  of  the  succession,  according  to  the  same  rules  and  under 
the  same  exceptions  as  heirs. 

Art.  1374. — But  though  the  heirs  and  other  universal  successors, 
who  have  not  made  an  inventory  as  is  before  prescribed,  are  bound  for 
the  payment  of  all  the  debts  of  the  succession  to  which  they  are  called, 
even  when  the  debts  exceed  the  value  of  the  property  left  them,  they 
are  not  bound,  in  solido  and  one  for  the  other,  for  the  payment  of  the 
debts. 

6  L.  17. 

Art.  1375. — When  the  deceased  has  left  one  sole  heir,  or  has  be- 
queathed all  his  property  universally  to  the  same  person,  this  heir  or 
universal  legatee  is  bound  for  the  payment  of  the  whole  of  the  debts  of 
the  succession,  and  may  be  sued  directly  and  personally  as  such  by 
those  who  are  the  creditors  of  the  succession. 

Art.  1376. — If,  on  the  contrary,  the  deceased  has  left  two  or  more 
heirs,  they  are  bound  to  contribute  to  the  payment  of  those  debts,  only 
in  proportion  to  the  part  which  each  has  in  the  succession. 


195  OF  SUCCESSIONS. 


195 


Thus  the  creditors  of  the  succession  must  divide  among  the  heirs 
the  personal  action  which  they  have  against  tlicm,  and  cannot  sue  one 
for  the  portion  of  the  other,  or  one  for  the  whole  debt. 

6  L.  17. 

Art.  1377. — If  the  succession  is  divided  by  roots,  the  subdivision 
of  debts  takes  place  among  the  representatives  of  each  root,  in  the  same 
manner  as  when  there  are  several  heirs. 

_  If  then  the  deceased  leaves  for  heirs  two  children  and  four  grand- 
children, the  issue  of  another  child  deceased,  each  of  the  children  is 
bound  only  for  one-third  of  the  debts,  and  each  of  the  grandchildren  for 
one  twelfth. 

Art.  1378. — If  one  of  the  heirs  be  a  creditor  of  the  deceased,  con- 
fusion will  only  take  place  for  his  part  in  the  debt,  and  he  may  'claim 
from  the  co-heirs  the  part  which  each  is  bound  to  contribute  for  the 
payment  of  this  debt. 

Art.  1379.— The  legatee  under  an  universal  title  shall  contribute 
with  the  heirs  to  the  payment  of  the  debts,  in  proportion  to  the  part 
bequeathed  to  him  in  the  succession  ;  but  the  legatee  under  a  particular 
title  is  not  liable  for  the  debts  of  the  succession,  though  he  may  be 
obliged  to  contribute  to  them  indirectly,  as  is  hereafter  explained. 

5  A.  W9. 

Art.  1380. — If  the  testator  has  bequeathed  more  than  his  disposable 
effects  amounted  to,  or  if  there  does  not  remain  sufficient  property  in 
the  succession  to  pay  all  the  debts,  the  legatees  may  be  made  to  give  up 
what  they  have  received  above  what  the  testator  was  permitted  to  be- 
queathe, or  the  deficit  necessary  to  discharge  the  debts  of  the  succession. 

In  the  first  case,  each  legatee  suffers  a  retrenchment  or  proportional 
diminution  of  the  amount  of  his  legacy  for  its  excess  above  the  dispos- 
able portion ;  in  the  second  he  is  compelled  to  bring  back  out  of  what 
he  has  received  his  proportional  sum  of  what  is  necessary  for  the  dis- 
charge of  the  debts. 

But  this  action  on  the  part  of  the  creditors  of  the  succession  against 
the  legatees,  is  prescribed  by  three  years,  to  be  calculated  from  the 
opening  of  the  succession. 

1  A.  214;  5  A.  190. 

Art.  1381. — The  particular  agreements  which  the  heirs  may  make 
among  themselves,  or  with  third  persons,,  relative  to  the  payment  of  the 
debts,  do  not  affect  their  obligations  towards  the  creditors  of  the  suc- 
cession. 

Thus,  though  one  of  them  be  charged  by  the  partition  with  the  pay- 
ment of  the  whole  of  a  certain  debt,  each  of  them  can  be  compelled  by 
the  creditor,  by  means  of  a  personal  action,  to  pay  his  proportion,  saving 
to  the  latter  his  recourse  against  the  person  who  is  bound  to  guarantee 
him  against  it. 

Art.  1382. — Although  the  heirs  and  other  successors  under  an  uni- 
versal title  are  personally  bound  for  the  debts  of  the  succession  to  any 
creditor,  only  in  proportion  to  their  respective  shares  in  the  succession 
yet  one  heir  may  be  bound  to  pay  the  whole  of  a  debt  by  an  hypothecary 
action,  when  the  property  fallen  to  his  share  has  been  mortgaged  by  the 
deceased ;  but  he  has  recourse  against  his  co-heirs,  or  the  other  succcs- 


igb  OF  SUCCESSIONS. 

sors  standing  in  tlicir  place,  for  the  amount  ■wliieli  lie  lias  been  boimd  tc 
pay  for  the  discharge  of  the  mortgage  debt. 

2  L.  187 ;  1  A.  204. 

Art.  1383. — The  particular  legatee  who  has  satisfied  the  debt  for 
which  the  bequeathed  immovable  was  mortgaged,  is  and  remains  sub- 
rogated to  the  rights  of  the  creditor  against  the  heirs  and  legatees  on 
an  universal  title. 

Art.  1384. — The  heir  or  successor  under  an  universal  title,  who,  by 
the  effect  of  the  action  of  mortgage  exercised  against  him,  has  been 
obliged  to  pay  more  than  his  share  of  the  common  debt,  has  recourse 
against  his  co-heirs  only  for  so  much  as  each  of  them  is  bound  to  sup- 
port personally,  even  though  the  co-heir  or  other  successor,  having  paid 
the  debt,  should  have  caused  himself  to  be  subrogated  to  the  rights  of 
the  mortgage  creditor. 

2  L.  137. 

Art.  1385. — But  if,  at  the  time  when  this  recourse  is  exercised, 
one  of  the  heirs  is  insolvent,  the  portion  which  this  heir  was  bound  to 
contribute,  shall  be  borne  proportionally  by  the  other  solvent  heirs  and 
him  who  has  paid  the  debt. 

Art.  138G. — If  all  the  immovables  of  a  succession  are  incumbered 
with  a  legal  or  judicial  mortgnge,  each  heir  who  has  in  his  possession 
one  or  more  of  these  immovables,  may  be  sued  by  the  hypothecary 
action  for  the  whole,  at  the  choice  of  the  creditor  ;  but  the  heir  so  sued 
has  his  recourse  against  his  co-heirs,  as  is  before  said. 

2  L.  137. 

Art.  1387. — The  heir  who  is  in  possession  of  a  mortgaged  property 
which  has  fallen  to  him  by  the  partition,  may  release  himself  from  the 
hypothecary  action  instituted  against  him,  by  abandoning  the  property, 
so  that  it  may  be  sold  by  the  creditor  who  sues  him,  and  the  debt  dis- 
charged out  of  the  proceeds  of  the  sale,  but  he  has  his  recourse  against 
his  co-heirs  for  the  payment  of  their  proportions  of  the  value. 

1  A.  20i 

Art.  1388. — But  this  abandonment  of  the  property  Avill  not  release 
the  heir  from  his  personal  responsibility  to  the  amount  of  the  portion 
which  he  inherits,  in  case  the  mortgaged  property  will  not  sell  for  a 
sufficient  sum  to  satisfy  the  debt  for  which  it  is  given. 

Art.  1389. — If  a  property  which  is  bequeathed  to  any  one  has  been 
mortgaged  by  the  testator  for  his  own  debt,  or  that  of  a  third  person, 
the  particular  legatee  is  liable  to  the  hypothecary  action  for  the  pay- 
ment of  this  debt,  at  the  instance  of  the  creditor,  saving  to  the  legatee 
the  right  of  abandoning  the  property  mortgaged,  in  order  to  release 
himself  from  the  hyj)oth(;cary  action,  in  the  same  manner  as  is  permitted 
to  the  heir  against  whom  this  action  is-  brought. 

Art.  1390. — The  particular  legatee,  who,  in  consequence  of  the 
hypothecary  action,  has  paid  the  debt,  or  abandoned  the  property  mort- 
gaged, has  no  recourse  against  the  heir  of  the  testator,  because  by  re- 
ceiving the  legacy,  he  is  considered  as  having  received  it  with  the 
incumbrances  with  which  it  was  charged. 

Art.  1391.— On  the  contrary,  if  the  heirs  of  the  testator  are  obliged 
to  pay  this  debt  on  the  personal  action  which  the  mortgage  creditor  can 
institute  against  them,  they  have  their  recourse  against  the  legatee,  to 


197  OF  SUCCESSIONS.  197 

cause  themselves  to  be  reimbursed  for  having  discharged  and  disengaged 
the  object  bequeathed,  which  they  were  not  obliged  to  do. 

Art.  1392. — But  if  the  mortgage  which  the  testator  has  given  on 
the  property  bequeathed,  be  for  a  debt  of  a  third  person,  the  legatee 
who,  at  the  suit  of  the  mortgage  creditor,  pays  the  debts  or  abandons 
the  property,  has  his  recourse  against  the  debtor  for  the  debt  for  Avhich 
the  testator  gave  th^  mortgage. 

Art.  1393. — The  provisions  contained  in  this  section,  relating  to 
the  manner  in  which  heirs,  or  other  universal  successors  are  bound  to 
contribiite  to  the  payment  of  debts,  does  not  prevent  the  contribution 
from  being  otherAvise  regulated  by  the  agreement  of  the  parties,  or  the 
will  of  the  testator,  provided  that  by  the  dispositions  made  by  the  tes- 
tator in  this  respect,  the  rights  of  the  lawful  heir  are  not  prejudiced. 

5  A.  199. 

Art.  1391. — But  these  agreements  or  dispositions  can  only  have 
effect  between  the  heirs  and  other  universal  successors,  they  can  in  no 
manner  alter  their  ol^Jigations  towards  the  creditors  of  the  succession  for 
the  payment  of  the  debts,  as  is  before  said. 

Art.  1395. — Titles  which  carry  execution  against  the  deceased,  are 
also  executory  against  the  heir  personally ;  nevertheless  the  creditors 
cannot  obtain  execution  on  them,  until  ten  days  after  the  notification  of 
them  be  made  to  the  person,  or  left  at  the  domicil  of  the  heir. 

3N.  S.  182;  1  A.  204. 

Art.  1396. — The  heir,  on  being  notified  thereof,  may  oppose  the 
execution,  before  the  tribunal  having  cognizance  of  the  matter,  on'*  his 
simple  motion;  and  if  he  proves  that  he  has  claimed  the  delays  for 
deliberating,  the  execution  shall  be  suspended  until  the  delays  have  ex- 
pired. 

1  A.  204. 

Art.  1397. — The  creditors  of  the  succession  may  demand,  in  every 
case  and  against  every  creditor  of  the  heir,  a  separation  of  the  property 
of  the  succession  from  that  of  the  heir.  This  is  what  is  called  the  sep- 
aration of  patrimony. 

1  A.  228. 

Art.  1398. — The  object  of  a  separation  of  ])atrimony  is  to  prevent 
property  out  of  which  a  particular  class  of  creditors  have  a  right  to  be 
paid,  from  being  confounded  with  other  property,  and  by  that  means 
made  liable  to  the  debts  of  another  class  of  creditors. 

1  A.  228. 

Art.  1399. — The  effect  of  this  demand,  on  the  part  of  the  creditors 
of  a  succession,  is  to  cause  them  to  be  paid  from  the  effects  of  the  suc- 
cession in  preference  to  the  creditors  of  the  heir. 

Art.  1400. — This  separation  may  be  demanded  by  all  the  creditors 
of  the  deceased,  whatever  they  may  be.  It  is  not  neccs.sary  that  these 
debts  be  demandable  in  order  to  enable  them  to  possess  this  right. 

Art.  1401. — Even  those,  whose  right  is  eventual,  or  depending  on 
an  uncertain  condition,  are  admitted  to  make  this  demand,  and  as,  before 
the  condition  happens,  they  cannot  prevent  the  creditors  of  the  heir  from 
being  paid,  they  are  permitted  to  require  security  from  them  that  they 
will  refund,  in  case  the  condition  happens. 


198  OF  SUCCESSIONS. 

Art.  1402. — The  legatees  may  also  demand  the  separation  in  order 
to  secure  the  payment  of  their  legacies  after  the  payment  of  the  debts 
of  the  succession. 

2  A.  ST. 

Art.  1403. — The  heir  in  part,  who  is  a  creditor  of  the  succession, 
as  confusion  only  takes  place  for  the  amount  of  his  property,  and  as  he 
remains  a  creditor  for  the  balance,  may  also  demand  this  separation  from 
his  co-heirs. 

2  A.  87. 

Art.  1404. — The  benefit  of  this  separation  may  be  claimed  against 
all  the  creditors  of  the  heirs,  whether  privileged  or  not. 

1  A.  22S. 

Art.  1 405. — The  creditors  of  a  succession,  in  which  there  are  several 
heirs,  may  demand  this  separation  from  some  of  the  heirs,  without  being 
obliged  to  require  it  from  the  others. 

Art.  1406. — The  creditors,  who  demand  this  saparation  of  the  effects 
of  the  succession,  cannot  include  in  it  the  eflfects,  which  the  deceased 
has  given  to  one  of  his  children  by  act  inter  vivos,  and  which  the  child 
is  bound  to  collate  ;  for  these  effects  do  not  belong  to  the  succession,  and 
the  collation,  which  the  child  who  is  the  donee,  is  bound  to  make  of 
them,  is  only  established  in  favor  of  his  co-heirs. 

1  A.  228. 

Art.  1407. — The  right  of  demanding  the  separation  cannot  be  ex- 
ercised, if  there  has  been  a  novation  in  the  debt  due  by  the  deceased. 

See  8  L.  321. 

Art.  1408. — There  is  a  novation  in  the  debt  of  the  deceased,  when 
the  creditor  has  accejited  a  new  title  from  the  heir,  or  a  pledge  or  mort- 
gage of  the  property  of  the  latter,  or  if  the  creditor  has  granted  him  a 
term  for  payment,  or  a  delay. 

But  there  is  no  novation,  if  the  creditor  has  merely  commenced  suit 
against  the  heir,  or  received  from  him  the  interest  due  the  creditor. 

Art.  1409. — The  suit  of  separation  of  patrimony  must  be  instituted 
within  three  months  from  the  express  or  tacit  acceptance  of  the  li-eirs  ; 
after  the  expiration  of  this  term,  it  is  not  admitted. 

Art.  1410. — The  petition  for  separation  of  patrimony  shall  not  be 
received,  unless  it  be  accompanied  with  the  sworn  declaration  of  the  cre- 
ditor or  creditors  parties  to  it,  that  they  believe  the  heir  is  embarrassed 
with  debts,  and  that  they  have  reason  to  believe  that  his  personal  debts 
will  absorb  the  effects  of  the  succession  to  their  prejudice. 

Art.  1411. — In  the  interval  between  the  openhig  of  the  succession 
and  the  three  months  allowed  for  the  institution  of  the  suit  for  the  sep- 
aration of  patrimony,  the  heir  cannot  alienate,  affect,  nor  sell  the  effects 
of  the  succession,  nor  any  of  them  to  the  prejudice  of  the  creditors;  and 
if  he  does  it,  the  creditors  may  cause  the  acts  to  be  declared  null,  as 
done  in  fraud  of  their  rights. 

Art.  1412. — The  creditors  of  the  heir,  have  also  the  right  of  de- 
manding of  the  creditors  of  the  succession,  the  separation  of  the  effects 
of  the  heir  from  those  of  the  succession,  and  the  suit  must  be  conducted 


199  OF  SUCCESSIONS.  199 

in  the  same  manner,  and  instituted  within  the  same  period,  as  that  at  the 
instance  of  the  creditors  of  the  succession,  and  produces  the  same  eifects 
in  favor  of  the  creditors  of  the  heir. 

Art.  1413. — When  the  creditors  of  the  succession  have  sued  for  a 
separation  of  patrimony,  if  there  are  not  effects  therein  sufficient  to  pay 
them,  they  liave  their  recourse  against  the  property  of  the  heir,  after  his 
own  creditors  have  been  paid. 

Art.  1414. — The  creditors  of  the  heir,  who  have  sued  for  the  sepa- 
ration, enjoy  the  same  right  to  cause  themselves  to  be  paid,  from  tho 
balance  of  the  eifects  of  the  succession,  what  is  due  them  by  the  heir,  in 
case  the  otlier  property  of  the  lieir  be  not  sufficient  to  pay  them. 

Art.  1415. — AVhen  there  is  competition  between  the  creditors  of  the 
deceased  only,  and  they  have  no  privilege  nor  mortgage,  they  have  an 
equal  right  against  the  effects  of  the  succession,  and  the  property  of  tho 
heir ;  and  each  receives  in  proportion  to  his  debt,  if  there  is  not  property 
enough  to  pay  them  all.  * 

Art.  1416. — If,  in  the  case  of  the  preceding  article,  there  are  some 
creditors  by  mortgage,  they  shall  be  paid  out  of  the  effects  of  the  suc- 
cession, according  to  the  order  of  their  mortgages ;  and  out  of  the  prop- 
erty of  the  heir  in  competition  with  the  other  creditors  who  have  no 
mortgage. 

Art.  1417. — But  creditors  by  mortgage,  or  other  creditors  of  the 
deceased,  who  have  acquired  the  first  mortgage  upon  the  property  of  the 
heir,  either  by  a  new  title,  or  by  a  judgment  obtained  against  him, 
shall  have  a  preference  over  the  other  creditors  on  the  estate  of  the 
heir. 

Art.  1418. — The  heir,  or  other  univeral  successor  is  not  bound  for 
the  legacies,  except  to  the  amount  of  the  value  of  the  effects  of  the  suc- 
cession, and  he  can  therefore  free  himself  from  them  by  abandoning  to 
the  legatees  what  remains  of  the  succession,  after  the  payment  of  the 
debts. 

Art.  1419. — If  it  be  the  lawful  heir,  who  makes  the  abandonment 
to  the  legatees,  he  has  a  right  to  reserve  to  himself,  from  the  effects  of 
the  succession,  the  legitimate  portion  secured  to  him  by  law,  and  shall 
deliver  up  the  balance  to  the  legatees. 

Section  IV. — Of  the  Effect  of  Partition. 

§  1. — Of  the  Warranty  of  Partition. 

Art.  1420. — Partition  is  a  sort  of  exchange,  which  the  co-heirs 
make  among  themselves,  one  giving  up  his  right  in  the  thing,  which  he 
abandons,  for  the  right  of  the  other  in  the  thing  he  takes. 

10  L.  172. 

Art.  1421. — The  co-heirs  remain  respectively  bound  to  warrant, 
one  to  the  other,  the  property  falling  to  each  of  their  shares  against  the 
disturbance  and  eviction  which  they  may  suffer,  when  the  disturbance 
or  eviction  proceeds  from  a  cause  anterior  to  the  partition. 

Art.  1422. — The  warranty  does  not  take  place,  if  the  kind  of  cvic 
tion  suffered  has  been  excepted  by  a  particular  and  express  clause  of  the 
act ;  but  it  cannot  be  stipulated  in  a  partition,  by  a  general  clause,  that 


200  OF  SUCCESSIONS. 

there  shall  be  bo  warranty  among  the  co-heirs  for  any  kind  of  disturb- 
ance W'liatcver. 

Art.  1423. — The  warranty  ceases,  if  it  be  by  the  fault  of  the  co- 
heir, that  he  has  suffered  the  eviction. 

Art.  1424. — Each  of  the  co-heirs  is  personally  bound,  in  proportion 
to  his  hereditary  share,  to  indemnify  his  co-heir  for  the  loss  which  the 
eviction  has  caused  him. 

Art.  1425. — But  the  indemnity  is  only  for  the  sum  for  which  the 
object  has  been  given  by  the  partition  to  the  heir  who  has  suffered  th 
eviction,  and  for  the  proportion  which  each  of  the  heirs  is  bound  to  con- 
tribute, the  amount  of  his  own  portion  being  extinguished  by  confusion ; 
and  the  heir  in  this  case  has  no  right  to  claim  remuneration  from  his 
co-heirs  for  any  damages  which  he  may  have  suffered  by  the  eviction. 

Art.  142(3. — If  one  of  the  co-heirs  happens  to  be  insolvent,  the 
portion,  for  which  he  is  bound,  must  be  divided  equally,  between  the 
one  who  is  guaranteed,  and  the  othe»  co-heirs  who  are  solvent. 

Art.  1427. — Warranty  between  co-heirs  has  two  different  effects, 
according  to  the  two  kinds  of  property  which  may  exist  in  the  suc- 
cession ; 

One  composed  of  things  which  corporeally  exist,  whether  they  be 
real  or  personal,  with  regard  to  which,  warranty  goes  no  further  than 
assuring  them  to  belong  to  the  succession. 

The  other  kind  consists  of  active  debts  and  other  rights  ;  and  with 
respect  to  these,  they  are  not  only  guaranteed  as  belonging  to  the  suc- 
cession, but  also  as  being  such  as  they  appear  to  be,  that  is  to  say,  as 
being  really  due  to  the  succession,  and  due  by  debtors  solvent  at  the 
time  of  the  partition,  and  who  shall  be  so  w^hen  the  debt  becomes  pay- 
able, if  it  be  not  then  due. 

Art.  1428. — The  warranties  mentioned  in  the  preceding  article 
exist  of  right,  so  that  they  are  always  implied,  and  the  heirs  arc  bound 
to  them,  though  no  mention  .be  made  thereof  in  the  partition. 

Art.  1429. — The  wari-anty  of  the  solvency  of  the  debtor  of  a  rent- 
charge,  cannot  be  claimed  after  the  lapse  of  five  years'from  the  partition. 

Art.  1430. — Where,  after  the  partition,  the  thing  decays  by  its 
nature,  or  perishes  by  accident,  such  loss  gives  rise  to  no  action  of 
warranty. 

Art.  1431. — If,  since  the  partition,  debts  or  charges  before  unknown 
are  discovered,  such  new  charges,  whatever  they  may  be,  shall  be  sup- 
ported by  all  the  heirs,  and  they  shall  mutually  guarantee  each  other. 

Art.  1432. — The  tacit  mortgage  which  resulted  from  the  partition 
for  the  execution  of  all  the  obligations  contained  therein,  no  longer 
exists ;  but  the  heirs  may  stipulate  a  special  mortgage. 

Art.  1433. — The  action  of  warranty  among  co-heirs  is  prescribed, 
as  ordinary  actions  are ;  and  the  time  commences  to  run,  to  wit :  for 
the  property  included  in  the  partition,  from  the  day  of  the  eviction ; 
and  for  debts,  from  the  day  that  the  insolvency  of  the  debtor  is  estab- 
lished by  the  discussion  of  his  effects. 

n  L.  426. 

Art.  1434. — The  heir,  to  whose  share  an  immovable  or  some  other 
thing  liable  to  be  mortgaged,  has  fallen,  is  not  bound  by  the  mortgages 
which  his  co-heirs  may  have  given   on  their  individual   shares   of  the 


201  OF  SUCCESSIONS.  ^Ul 

same,  previous  to  the  partition ;  and  these  mortgages  are  dissolved  of 
right,  except  upon  the  property  which  falls  to  the  heirs  who  have  given 
the  mortgages,  if  the  property  is  susceptible  of  being  mortgaged 

See  Arts.  1342,  134:3 ;  12  E.  450. 


§  2. — Of  the  Rescission  of  Partitiov. 

Art.  1 435. — Partitions  made,  even  with  persons  of  full  age,  may  be 
rescinded,  like  other  covenants,  for  radical  vices,  such  as  violence,  fraud 
or  error. 

Art.  1436. — They  may  even  be  rescimlod,  on  account  of  lesion; 
and  as  equality  is  the  base  of  partitions,  it  suffices,  to  cause  the  rescission, 
that  such  lesion  be  of  more  than  one-fourth  part  of  the  true  value  of 
the  property. 

Art.  1437. — When  partitions,  in  which  minors,  persons  interdicted, 
or  absentees  are  interested,  liave  been  made  with  all  the  formalities 
prescribed  by  law  for  judicial  partitions,  they  cannot  be  rescinded  for 
any  other  than  those  which  would  authorize  the  rescission  of  partitions 
made  by  persons  of  age  and  present. 

Art.  1438. — But  if  these  formalities  have  not  been  fulfilled,  as  the 
partition  is  only  considered  as  provisional,  it  is  not  necessary  to  sue  for 
the  rescission  of  it,  but  a  new  partition  may  be  demanded  for  the  least 
lesion,  which  the  minor,  person  interdicted  or  absentee,  may  have 
suffered. 

5  L.  882 ;  7  L.  156. 

Art.  1439 — The  mere  omission  of  a  thing,  belonging  to  the  suc- 
cession, is  not  ground  for  rescission,  but  simply  for  a  sui^plement  of 
partition. 

Art.  1440. — The  action  of  rescission  mentioned  in  the  foregoing 
articles,  takes  place  in  the  cases  prescribed  by  law,  not  only  against  all 
acts  bearing  the  title  of  partition,  but  even  against  all  those  which  tend 
to  the  division  of  property  between  co-heirs,  whether  such  acts  be 
called  sales,  exchanges,  compromises,  or  by  any  other  name. 

6  L.  346. 

Art.  1441. — But,  after  the  partition,  or  the  act  operating  the  same 
effect,  the  action  of  rescission  can  no  longer  be  admitted  against  a  com- 
promise made  to  put  an  end  to  disputes  arising  in  consequence  of  the  first 
act,  although  there  should  be  no  suit  commenced  on  the  subject. 

Art.  1442. — The  action  of  rescission  is  not  admitted  against  a  sale  of 
hereditary  rights,  made  without  fraud  to  one  of  the  heirs  and  at  his  risk 
by  the  other  co-heirs  or  any  of  them. 

Art.  1443. — The  sale  of  hereditary  rights  of  one  heir  to  his  co-heir 
is  not  subject  to  rescission,  if  the  purchaser  has  run  no  risk,  as,  for  ex- 
ample, if  the  vendor  remains  bound  for  the  payment  of  the  debts. 

Art.  1444. — In  order  that  the  purchaser  be  not  liable  to  this  action, 
it  is  besides  necessary  that  the  vendor  should  have  ceded  to  him  all  his 
hereditary  rights,  that  is,  all  the  rights  he  had  in  the  succession.  If  he 
has  only  .sold  his  part  in  the  immovables  to  be  divided,  this  sale  shall  be 
subject  to  rescission  for  lesion  beyond  a  fourth. 


202  OF  SUCCESSIONS. 

Art.  1445. — This  sale  shall  be  subject  to  rescission  if  it  be  proved 
that,  at  the  time  it  was  made,  the  purchaser  alone  knew  the  value  of  the 
succession,  and  permitted  the  vendor  to  remain  in  ignorance  of  it. 

Art.  1446. — The  defendant  in  the  suit  for  rescission  may  stop  its 
course  and  prevent  a  new  partition,  by  offering  and  giving  to  the  plain- 
tiff the  supplement  of  his  hereditary  portion,  either  in  money  or  in  kind, 
provided  the  rescission  is  not  demanded  for  cause  of  violence  or  fraud. 

Art.  1447. — When  the  defendant  is  admitted  to  jjrevcnt  a  new  par- 
tition, as  is  said  in  the  preceding  article,  if  he  furnishes  the  supple- 
ment tn  money,  it  must  be  with  interest  from  the  day  of  the  institution 
of  the  suit,  if  he  furnishes  it  in  effects,  he  is  bound  to  restore  the  fruits 
from  tne  same  day. 

Art.  1448. — The  co-heir,  who  has  alienated  his  share  or  part  of  it, 
is  no  longer  admitted  to  bring  the  action  of  rescission  for  fraud  or  vio- 
lence, if  the  alienation  he  has  made  was  posterior  to  the  discovery  of  the 
fraud,  or  to  the  cessation  of  the  violence. 

Art.  1 449. — If  the  partition  has  been  regulated  by  the  father  among 
his  children,  no  restitution  can  take  place,  even  in  favor  of  minors,  when, 
by  such  partition,  one  or  more  of  the  heirs  have  received  more  than  the 
others,  unless  that  overplus  should  exceed  the  portion  which  the  father 
had  a  right  to  dispose  of. 

Art.  1450. — The  minor  who  obtains  relief  against  a  partition,  re- 
lieves those  of  full  age ;  for  the  partition  cannot  subsist  for  one,  and  be 
annulled  for  another. 

Art.  1451. — Suits  for  the  rescission  of  partitions  are  prescribed  by 
the  lapse  of  ten  years  from  the  date  thereof,  and  in  case  of  error  and 
fraud,  from  the  day  in  which  they  are  discovered. 

3R.  313;  See  Art.  S50T. 

Art.  1452. — This  prescription,  in  case  of  lesion,  runs  against  minora 
as  well  as  against  persons  of  age,  when  the  partition  has  been  made  ju- 
dicially and  with  all  the  forms  prescribed  by  law. 


203  OF  DOITATIONS  AND  TESTAMENTS.  20S 

TITLE  II. 

OF  DONATIONS  INTER  VIVOS  (BETWEEN  LIVING  PERSONS)  AND  MOR- 
TIS CAUSA  (IN  PROSPECT  OF  DEATH). 

CHAPTER  I. 

GENERAL    DISPOSITIONS. 

Art.  1453. — Property  can  neither  be  acquired  nor  disposed  of  gra- 
tuitously, unless  by  donations  infer  vivos  or  mortis  causa,  made  in  the 
forms  hereafter  established  for  one  or  the  other  of  these  acts. 

17  L.  144;  3R.TS;  2  A.  80. 

Art.  1454. — A  donation  inter  vivos  (between  living  persons)  is  an 
act  by  which  the  donee  divests  himself  at  present  and  irrevocably  of  the 
thing  given,  in  favor  of  the  donee  who  accepts  it. 

10  L.  S5 ;  15  L.  562. 

Art.  1455. — A  donation  mortis  causa  (in  prospect  of  death)  is  an 
act  to  take  effect,  when  the  donor  shall  no  longer  exist,  by  which  he  dis- 
poses of  the  whole  or  a  part  of  his  property,  and  which  is  revocable. 

8  E.  7S  ;  15  L.  502 ;  17  L.  144 ;  19  L.  528  ;  2  A.  .30 ;  See  4  L.  423. 

CHAPTER  II. 

OF    THE    CAPACITY    NECESSARY    FOR    DISPOSING    AND    RECEIVING    BY    DONA- 
TION   INTER    VIVOS    AND    MORTIS    CAUSA. 

Art.  1456. — All  persons  may  dispose  of  or  receive  by  donatiou  iritcr 
vivos  or  mortis  causa,  except  such  as  the  law  expressly  declares  inca- 
pable. 

14  L.  542 ;  See  2  A.  667. 

Art.  1457. — The  incapacities  are  absolute  or  relative: 
Absolute  incapacities  prevent  the  giving  or  receiving  indefinitely  with 
regard  to  all  persons  ; 

Relative  incapacities  prevent  the  giving  to  certain  persons,  or  re- 
ceiving from  them. 

8  A.  494. 

Art.  1458. — It  is  sufficient  if  the  capacity  of  giving  exists  at  the 
moment  the  donation  is  made. 

3  A.  494 

Art.  1459. — AVith  regard  to  the  capacity  of  receiving,  it  is  sufficient, 
if  it  exists  at  the  moment  of  the  acceptance  of  the  donation  inter  vivos 
or  at  the  opening  of  the  succession  of  the  testator. 

19  L.  52S;  3  A.  494. 

Art.  14G0. — When  the  donation  depends  on  the  fulfilment  of  a  con- 
dition, it  is  sufficient  if  the  donee  is  capable  of  receiving  at  the  moment 
the  condition  is  accomplished. 

17L.46;  19L.52S. 


204  OF  DONATIONS  AND  TESTAMENTS. 

Art.  1461. — To  make  a  donation  either  inta-  vivos  or  mortu  causa, 
one  must  be  of  sound  mind. 

Art.  1462. — Slaves  cannot  dispose  of,  or  receive  by  donation  i?ite7 
vivos  or  mortis  causa,  unle^  they  have  been  previously  and  expressly 
enfranchised  conformably  to  lavs^,  or  unless  they  are  expressly  enfran- 
chised by  the  act  itself  by  which  the  donation  is  made  to  them. 

Art.  1463. — The  minor  under  sixteen  years  cannot  dispose  of  any 
property,  save,  however,  the  dispositions  contained  in,  the  ninth  chapter 
of  this  title. 

Art.  1 464. — The  minor  above  sixteen  can  dispose  only  inortis  causa 
(in  prospect  of  death). 

But  he  may  dispose  in  this  manner  of  the  same  amount  as  a  person 
of  full  age  can  do,  even  to  the  prejudice  of  the  usufruct  granted  by  law 
to  the  father  and  mother  of  the  minor  not  emancipated,  during  mar- 
riage ;  and  the  usufruct  in  that  case,  will  cease  to  the  advantage  of  the 
person  in  whose  favor  the  minor  had  disposed  of  it  if  the  minor  dies, 
being  still  under  the  power  of  his  father  and  mother ;  and  to  make  such 
disposition  the  minor  has  no  need  of  the  authorization  or  concurrence  of 
his  curator. 

2  E.  42T. 

Art,  1465. — Nevertheless,  the  minor  who  has  a  right  to  dispose  by 
donation  mortis  causa,  cannot  make  such  disposition  in  favor  of  his 
curator  ad  bona,  nor  of  his  preceptors  or  instructors  whilst  he  is  under 
their  authority. 

Art.  146(5. — The  minor,  even  when  he  comes  of  age,  cannot  dis- 
pose of  property  either  by  donation  inter  vivos  or  mortis  causa  in  fa- 
vor of  the  person  who  has  been  his  tutor  or  curator  ad  bona,  iiuless 
the  final  account  of  the  tutorship  or  curatorship  has  been  previously 
rendered  and  settled. 

The  two  eases  above  mentioned  do  not  apply  to  the  relations  of 
the  minor  who  have  been  his  tutors,  curators,  or  iustitutors. 

Ar.t.  1467. — A  married  woman  cannot  make  a  donation  inter  vivos 
without  the  concurrence  or  special  consent  of  her  husband,  or  unless  she 
be  authorized  by  the  judge,  conformably  to  what  is  prescribed  under  the 
title  of  husband  and  wife. 

But  she  needs  neither  the  consent  of  her  husband  nor  any  judicial 
authorization  to  dispose  by  donation  mortis  causa. 

Art.  1468. — Those  who  have  lived  together  in  open  concubinage 
are  respectively  incapable  of  making  to  each  other,  whether  inter  vivos 
or  mortis  causa,  any  donation  of  immovables  ;  and  if  they  make  a  do- 
nation of  movables,  it  cannot  exceed  one-tenth  part  of  the  whole  value 
of  their  estate. 

Those  who  afterwards  marry  are  excepted  from  this  rule. 

6  L.  8S0 ;  IT  L.  144 ;  10  R.  143 ;  2  A.  51T,  946 ;  3  A.  239  ;  6  A.  323,  350. 

Art.  1469. — In  order  to  be  capable  of  receiving  by  donation  inter 
vivos,  it  sviffices  to  be  conceived  at  the  time  of  the  donation. 

In  order  to  be  capable  of  receiving  by  last  will,  it  suffices  to  be  con- 
ceived at  the  time  of  the  decease. 

But  the  donations  or  the  last  will  can  have  eflPect  only  in  case  the 
child  should  be  born  alive. 

IT  L.  46  ;  8  A.  494. 


205  OF  DONATIONS  AND  TESTAMENTS.  205 

Art.  1470. — Natural  children  or  acknowledged  bastards  cannot  re- 
ceive from  their  natural  parents,  by  donations  inter  vivos  or  morti$ 
causa  beyond  what  is  strictly  necessai-y  to  procure  them  sustenance,  oi 
an  occupation  or  profession  which  may  maintain  them,  whenever  the  fa- 
ther or  the  mother  who  has  thus  disposed  in  their  favor,  leaves  legiti- 
mate children  or  descendants. 

Those  donations  shall  be  reducible  in  case  of  excess,  according  to 
the  rules  laid  down  under  the  title  of  father  ami  child. 

IL.  495;  14  L.  542;  C  A.  161. 

Art.  1471. — When  the  natural  mother  has  not  left  any  legitimate 
children  or  descendants,  natural  children  may  acquire  from  her  by  do- 
nation inter  vivos  or  mortis  causa,  to  the  whole  amount  of  her  succes- 
sion. 

4  A.  30S. 

Art.  1 472. — But  if  she  has  left  them  only  a  part,  and  has  disposed 
of  the  rest  in  favor  of  other  persons,  her  natural  children  have  no  action 
against  her  heirs  for  any  thing  more  than  so  much  as  is  wanting  to  sup- 
ply the  maintenance  that  is  secured  to  them  by  law,  in  case  what  she 
has  left  them  be  not  sufficient  for  their  support. 

Art.  1473. — When  the  natural  father  has  not  left  legitimate  chil- 
dren or  descendants,  the  natural  child  or  children,  acknowledged  by  him 
may  reocive  from  him,  by  donation  inter  vivos  or  mortis  catcsa,  to  the 
amount  of  the  following  proportions,  to  wit : 

One-fourth  of  his  property,  if  he  leaves  legitimate  ascendants  or 
legitimate  brothers  or  sisters  or  descendants  from  such  brothers  and 
sisters;  and  one-third,  if  he  leaves  more  remote  collateral  rela.ions. 

S  L.  459 ;  14  L.  542  ;  10  R.  512;  12  R.  56,  5.52  ;  6  A.  15G,  161 ;  s'ce  4  L.  267. 

Art.  1474. — In  all  cases  in  which  the  father  disposes  in  favor  of  his 
natural  children,  of  the  portion  permitted  him  by  law  to  dispose  of,  he 
is  bound  to  dispose  of  the  rest  of  his  property  in  favor  of  his  legitimate 
relations ;  every  other  disposition  shall  be  null,  except  those  which  he 
may  make  in  favor  of  some  public  institution. 

S  L.  4.-.9  ;  10  R.  512 ;  12  R.  56,  552. 

Art.  1475. — Natural  fathers  and  mothers  can,  in  no  case,  dispose 
of  property  in  favor  of  their  adulterine  or  incestuous  children,  unless  to 
the  mere  amount  of  what  is  necessary  to  their  sustenance,  or  to  procure 
them  an  occupation  or  profession  by  which  to  support  themselves. 

Art.  1476. — Doctors  of  physic  or  surgeons,  who  have  professionally 
attended  a  person  during  the  sickness  of  which  he  dies,  cannot  receive 
any  benefit  from  donations  inter  vivos  or  moi'tis  cavsa  made  in  their 
favor  by  the  sick  person  during  that  sickness.  To  this,  however,  there 
are  the  following  exceptions  : 

1.  Remunerative  dispositions  made  on  a  particular  account,  regard 
being  had  to  the  means  of  the  disposer  and  to  the  services  rendered ; 

2.  Universal  dispositions  in  case  of  consanguinity. 

The  same  rules  are  observed  with  regard  to  the  ministers  of  religious 
worship. 

Art.  1 477. — Donations  inter  vivos  and  mortis  causa  may  be  jnade 
in  favor  of  a  stranger,  when  the  laws  of  his  country  do  not  prohibit 
eimilar  dispositions  from  being  made  in  favor  of  a  citizen  of  this  State,* 

17  L.  312. 

Art.  1478. — Every  disposition  in  favor  of  a  person  incapable  of  re- 


206  OF  DONATIONS  AND  TESTAMENTS. 

ceiving  shall  be  null,  whether  it  be  disguised  under  the  form  of  an  oner- 
ous contract,  or  be  made  under  the  name  of  persons  interposed. 

The  father  and  mother,  the  children  and  descendants,  and  the  hus- 
band or  wife  of  the  incapable  person,  shall  be  reputed  persons  inter- 
posed. 

1  L.  495 ;  U  L.  542  ;  17  L.  4G ;  12  E.  56. 

Art.  1479. — Proof  is  not  admitted  of  the  dispositions  having  been 
made  through  hatred,  anger,  suggestion,  or  captation. 

9L.458. 


CHAPTER  III. 

OF     THE     DISPOSABLE     rORTION,     AND     OF     ITS     REDUCTION     IN     CASE      01 

EXCESS. 

Section  I. —  Of  the  Disposable  Portion  and  the  Legitime. 

Art.  1480. — Donations  inter  vivos  or  mortis  cmisa  cannot  exceed 
two-thirds  of  the  property  of  the  disposer,  if  he  leaves  at  his  decease, 
a  legitimate  child ;,  one-half,  if  he  leaves  two  children ;  and  one-third  if 
he  leaves  three  or  a  greater  number.  » 

Under  the  name  of  children  are  included  descendants  of  whatever 
degree  they  be,  it  being  understood  that  they  are  only  counted  for  the 
child  they  represent. 

1  L.  234;  4  L.  353;  14  L.  542;  12  R.  539;  2  A.  80,  293;  See  1  A.  142. 

Art.  1481 — Donations  inter  vivos  cfr  mortis  causa  cannot  exceed 
two-thirds  of  the  property,  if  the  disposer,  having  no  children,  leave  a 
father,  mother  or  both. 

7N.  S.  414;  See  1  A.  142. 

Art.  1482. — In  the  cases  prescribed  by  the  two  last  preceding  arti- 
cles, the  heirs  are  called  forced  heirs,  because  the  donor  cannot  deprive 
them  of  the  portion  of  his  estate  reserved  for  them  by  law,  except  in 
cases  where  he  has  a  just  cause  to  disinherit  them. 

TN.  S.  414;  Seel  A.  142. 

Art.  1483. — Where  there  are  no  legitimate  descendants,  and  in  case 
Df  the  previous  decease  of  the  father  and  mother,  donations  inter  vivos 
or  mortis  cansa,  may  be  made  to  the  whole  amount  of  the  property  of 
the  disposer,  saving  the  reservation  made  hereafter. 

4  L.  853 ;  14  L.  542 ;  See  1  A.  142. 

Art.  1484. — The  donation  inter  vivos  shall  in  no  case  divest  the 
donor  of  all  his  property ;  he  must  reserve  to  himself  enough  for  sub- 
sistence ;  if  he  does  not  do  it,  the  donation  is  null  for  the  whole. 

11  R.  802;  6  A.  495;  See  1  A.  142. 

Art.  1485. — The  legitimate  portion  of  which  the  testator  is  forbid- 
den to  dispose  to  the  prejudice  of  his  descendants,  being  once  fixed  by 
the  number  of  children  living  or  represented  at  the  death  of  the  testa 
tor,  does  not  diminish  by  the  renunciation  of  one  or  any  of  them.  The 
part  of  those  who  renounce  goes  to  those  who  accept. 

2  A.  30 ;  See  1  A.  142. 

Art.   1486. — If  the  disposition  made  by  donation  inter  vivos  or 


207  OF  DONATIONS  AND  TESTAMENTS.  207 

mortis  cansa^  be  of  an  usufruct,  or  of  an  annuity,  the  value  of  which 
exceeds  the  disposable  portion,  the  forced  heirs  have  the  option,  either 
to  execute  the  disposition,  or  to  abandon  to  the  donee  the  ownership  of 
such  portion  of  the  estate  as  the  donor  had  a  right  to  dispose  of. 

Art.  1487. — The  value  in  full  ownership  of  property  which  has 
been  alienated,  cither  for  an  annuity  for  life,  or  with  reservation  of  an 
usufruct,  to  one  of  those  who  succeed  to  the  inheritance  in  the  direct 
descending  line,  shall  be  imputed  to  the  disposable  portion,  and  the  sur- 
plus, if  any  there  be,  shall  be  brought  into  the  succession  ;  but  this  im- 
putation and  this  collation  cannot  be  demanded  by  any  of  the  heirs  in 
the  direct  descending  line  who  have  consented  to  those  alienations. 

7N.  S.  414;  See  1  A.  142. 

Art.  1488. — The  disposable  quantum  may  be  given  in  whole  or  in 
part,  by  an  act  inter  vivos  or  mortis  causa,  to  one  or  more  of  the  dis- 
poser's children  or  successible  descendants,  to  the  prejudice  of  his 
other  children  or  successible  descendants,  without  its  being  liable  to 
be  brought  into  the  succession  by  the  donee  or  legatee,  provided  it  be 
expressly  declared  by  the  donor  that  this  act  is  intended  to  be  over  and 
above  the  legitimate  portion. 

This  declaration  may  be  made,  either  by  the  act  containing  the  dis- 
position, or  subsequently  by  an  instrument  executed  before  a  notary 
public,  in  presence  of  two  witnesses. 

See5M.408;l  A.  142. 

Section  II. — Of  the  Reduction  of  Dispositions  Inter  Vivos  or  Mortis 
Causa  ;  of  the  Manner  in  xvhich  it  is  made  ;  and  of  its  Effects. 

Art.  1489. — Any  disposal  of  property,  whether  inter  vivos  or  mor- 
tis causa,  exceeding  the  quantum  of  which  a  person  may  legally  dispose 
to  the  prejudice  of  the  forced  heirs,  is  not  null,  but  only  reducible  to 
that  quantum. 

T  N.  S.  414 ;  S  L.  459 ;  19  L.  528 ;  11  K.  302 ;  12  R.  552 ;  Sco  1  A.  142. 

Art.  1490. — A  donation  inter  vivos,  exceeding  the  disposable  quan- 
tum, retains  all  its  effect  during  the  life  of  the  donor. 

Art.  1491. — On  the  death  of  the  donor  or  testator,  the  reduction 
of  the  donation,  whether  inter  vivos  or  mortis  causa,  can  be  sued  for 
only  by  forced  heirs,  or  by  their  heirs  or  assigns  :  neither  the  donees, 
legatees,  nor  creditors  of  the  deceased,  can  require  that  reduction  nor 
avail  themselves  of  it. 

8  L.  469 ;  14  L.  542 ;  19  L.  523 ;  3  R.  78  ;  11  R.  302 ;  See  T  R.  429. 

Art.  1492. — To  determine  the  reduction  to  which  the  donations, 
cither  iiiter  vivos  or  mortis  causa  are  liable,  an  aggregate  is  formed  of 
all  the  property  belonging  to  the  donor  or  testator  at  the  time  of  his 
decease  ;  to  that  is  fictitiously  added  the  property  disposed  of  by  dona- 
tion iiitcr  vivos,  according  to  its  value  at  the  time  of  the  donor's  de- 
cease, in  the  state  in  which  it  was  at  the  period  of  the  donation. 

The  sums  due  by  the  estate  are  deducted  from  this  aggregate 
amount,  and  the  disposable  quantu.m  is  calculated  on  the  balance,  tak- 
ing into  consideration  the  number  of  heirs  and  their  qualities  of  ascend- 
ant or  descendant,  so  as  to  regulate  their  legitimate  portion  by  the  rules 
above  established. 

1  A.  1 12,  237. 


208  OF  DONATIONS  AND  TESTAMENTS. 

Art.  1493. — In' the  fictitious  collation  of  effects  given  by  act  intci 
vivos  by  tlie  deceased,  those  which  have  perished  by  accident  in  the 
hands  of  the  donee,  are  not  included;  those  which  have  perished  through 
his  fault  only  are  to  be  included. 

AuT.  14SU. — Donations  inter  vivos  can  never  be  reduced,  until  the 
value  of  all  the  property  comprised  in  donations  moi'tis  causa,  be  ex- 
hausted ;  and  when  that  reduction  is  nccessar}'^,  it  shall  be  made  by  be- 
ginning with  the  last  donations,  and  thus  successively  ascending  from 
the  last  to  the  first. 

Art.  1495. — When  the  last  donee  is  insolvent,  the  heir  can,  aftei 
the  previous  discussion  of  his  effects,  claim  from  the  donee,  which  pre- 
cedes the  last,  his  legitime,  and  so  on  to  the  one  preceding  him. 

Art.  1496. — If  the  donation  inter  vivos,  subject  to  reduction,  was 
made  to  one  of  those  who  succeed  to  any  part  of  the  estate,  the  latter 
is  authorized  to  retain  of  the  property  given  the  value  of  the  portion 
that  would  belong  to  him  as  heir  in  the  property  not  disposable,  if  it  be 
of  the  same  nature. 

Art.  1497. —  When  the  value  of  donations  inter  vivos  exceeds  or 
equals  the  disposable  quantum,  all  dispositions  mortis  causa  are  with- 
out efiiect. 

Art.  1498. — When  the  dispositions  mortis  causa  exceed,  either  the 
disposable  quantum  or  the  portion  of  that  quantum  that  remains  after 
the  deduction  of  the  value  of  the  donations  inter  vivos,  the  reduction 
shall  be  made  ^jro  rata,  without  any  distinction  between  universal  dispo- 
sitions and  particular  ones. 

11  L.  429. 

Art.  1499. — Nevertheless,  in  case  the  testator  has  expressly  de- 
clared that  any  particular  legacy  should  be  paid  in  preference  to  the 
others,  that  preference  shall  take  place,  and  the  legacy,  that  is,  the  ob- 
ject of  it,  shall  not  be  reduced,  if  the  value  of  the  others  does  not  fall 
short  of  the  legal  reservation. 

Art.  1500. — Remunerative  donations  can  never  be  reduced  below 
the  estimated  value  of  the  services  rendered. 

2  K.  292. 

Art.  1501. — Donations,  by  which  charges  are  imposed  on  the  donee, 
can  never  be  reduced  below  the  expenses,  which  the  donee  has  incurred 
to  perform  them. 

Art.  1502. — The  donee  restores  the  proceeds  of  what  exceeds  the 
disposable  portion,  only  from  the  day  of  the  donor's  decease,  if  the  de- 
mand of  the  reduction  was  made  within  the  year ;  otherwise  from  the 
day  of  the  demand. 

Art.  1503. — Immovable  property,  that  is  brought  into  the  succession 
through  the  effect  of  reduction,  is  brought  into  it  without  any  charge  of 
debts  or  mortgages  created  by  the  donee. 

Art.  1504. — The  action  of  reduction  or  revendication  may  be 
brought  by  the  heirs  against  third  persons  holding  the  immovable  pro- 
perty, which  has  been  alienated  by  the  donee,  in  the  same  manner  and 
order  that  it  may  be  brought  against  the  donee  himself,  but  after  dis- 
cussion of  the  property  of  the  donee. 

1  L.  505 ;  11  R.  302. 


209  OF  DONATIONS  AND  TESTAMENTS.  209 

Art.  1 505. — If  the  donee  has  successively  sold  several  objects  of 
real  estate,  liable  for  an  action  of  revendication,  that  action  must  be 
brought  against  third  persons  holding  the  property,  according  to  the 
order  of  their  purchases,  beginning  with  the  last,  and  ascending  in  suc- 
cession from  the  last  to  the  first. 


CHAPTER  IV. 

OF    DISPOSITIONS    RErROBATED    BY    LAW    IN     DONATIONS    INTER    VIVOS    AND 

MORTIS    CAUSA. 

Art.  1506. — In  all  dispositions  inter  vivos  or  mortis  causa,  impos- 
sible conditions,  those  which  are  contrary  to  the  laws  or  to  morals,  are 
reputed  not  written. 

12  R.  56. 

Art.  1507. — Substitutions  smdfidci  commissa  arc  and  remain  pro- 
hibited. 

Every  disposition  by  which  the  donee,  the  heir  or  legatee,  is  charged 
to  preserve  for  or  to  return  a  thing  to  a  tliird  person,  is  null,  even  with 
regard  to  the  donee,  the  instituted  heir  or  legatee. 

In  consequence  of  this  article,  the  trebellianic  portion  of  the  civil 
law,  that  is  to  say,  the  portion  of  the  property  of  the  testator,  which  the 
instituted  heir  had  a  right  to  retain,  when  he  was  charged  with  afidei 
commissa  or  fiduciary  bequest,  is  no  longer  a  part  of  our  law. 

4  L.  502,  212 ;  6  L.  231 ;  12  L.  19 ;  13  L.  1 ;  18  L.  21 ;  4  N.  S.  45 ;  1  E.  115 ;  2  A.  377 ;  8  A.  482,  494; 

5  A.  476. 

Art.  1508. — The  disposition  by  which  a  third  person  is  called  to 
take  the  gift,  the  inheritance,  or  the  legacy,  in  case  the  donee,  the  heir 
or  the  legatee  does  not  take  it,  shall  not  be  considered  a  substitution 
and  shall  be  valid. 

3  A.  491 

Art.  1509. — The  same  shall  be  observed  as  to  the  disposition 
^nter  vivos  or  mortis  causa,  by  which  the  usufruct  is  given  to  one,  and 
the  naked  property  to  another. 

7N.  S.  414;  IE.  115;  3  A.  494. 


CHAPTER  V. 

OF    THE    DONATIONS    INTER    VIVOS    (BETWEEN    LIVING    PERSONS.) 

Section  I. —  General  Dispositions. 

Art.  1510. — There  are  three  kinds  of  donations  i?itcr  vivos: 

The  donation  purely  gratuitous,  or  that  which  is  made  without  con- 
dition and  merely  from  liberality  ; 

The  onerous  donation,  or  that  which  is  burdened  with  charges  im- 
posed on  the  donee ; 

The  remunerative  donation,  or  that  the  object  of  which  is  to  recom- 
pense for  services  rendered. 

Art.  1511. — The  onerous  donation  is  not  a  real  donation,  if  the 
14 


210  OF  DONATION'S  AND  TESTAMENTS. 

value  of  the  object  given  does  not  manifestly  exceed  that  of  the  charges 
impossed  on  the  donee. 

Art.  1512. — The  remunerative  donation  is  not  a  real  donation,  if 
the  value  of  the  services  to  be  recompensed  thereby  being  appreciated 
in  money,  should  be  little  inferior  to  that  of  the  gift. 

2  K.  292 ;  See  6  L.  SSO. 

Art.  1513. — In  consequence,  the  rules  peculiar  to  donations  inter 
vivos  do  not  apply  to  onerous  and  remunerative  donations,  except  when 
the  value  of  the  object  given  exceeds  by  one-half  that  of  the  charges  or 
of  the  services. 

6  L.  8S0 ;  11  E.  302 ;  3  A.  230. 

Art.  1514. — A  donation  inter  vivos  can  comprehend  only  the  pre- 
sent property  of  the  donor.  If  it  comprehends  property  to  come,  it 
shall  be  null  with  regard  to  that. 

lOL.  85;  2  A.  T76. 

Art.  1515. — The  donor  may  impose  on  the  donee  any  charges  or 
conditions  he  pleases,  provided  they  contain  nothing  contrary  to  law  or 
good  morals. 

Art.  1516. — Every  donation  inter  vivos  made  on  conditions,  the 
execution  of  which  depends  on  the  sole  will  of  the  donor,  is  null. 

Art.  1517. — It  is  also  null  if  it  was  made  on  condition  of  paying 
other  debts  and  charges  than  those  that  existed  at  the  time  of  the  dona- 
tion, or  were  expressed  either  in  the  act  of  donation,  or  in  the  act  that 
was  to  be  annexed  to  it. 

Art.  1518. — In  case  the  donor  has  reserved  to  himself  the  liberty 
of  disposing  of  any  object  comprised  in  the  donation  or  of  a  stated  sum 
on  the  property  given,  if  he  dies  without  having  disposed  of  it,  that  ob- 
ject or  sum  shall  belong  to  the  heirs  of  the  donor,  any  clause  or  stipu- 
lation to  the  contrary  notwithstanding. 

Art.  1519. — The  four  preceding  articles  are  not  applicable  to  do- 
nations of  which  mention  is  made  in  the  eighth  and  ninth  chapters  of  the 
present  title. 

15  L.  562. 

Art.  1520. — The  donor  is  permitted  to  dispose,  for  the  advantage 
of  any  other  person,  of  the  enjoyment  or  usufruct  of  the  immovable 
property  given,  but  cannot  reserve  it  for  himself. 

11  R.  302;  4  A.  36. 

Art.  1521. — The  donor  may  stipulate  the  right  of  return  of  the  ob- 
jects given,  either  in  case  of  his  surviving  the  donee  alone,  or  incase  of 
his  surviving  the  donee  and  his  descendants. 

That  right  can  be  stipulated  for  the  advantage  of  the  donor  alone. 

6  L.  231 ;  12  L.  207. 

Art.  1522. — The  effect  of  the  right  of  return  is,  that  it  cancels  all 
alienations  of  the  property  given,  that  may  have  been  made  by  the  do 
nee  or  his  descendants,  and  causes  the  property  to  return  to  the  donor 
free  and  clear  of  all  incumbrances  and  mortgages,  except,  however,  the 
mortgage  for  the  dowry  and  matrimonial  agreements,  if  the  other  pro- 
perty of  the  husband,  being  the  donee,  be  not  sufl&cient,  and  only  in  case 
the  donation  was  made  to  him  by  the  same  marriage  contract,  which 
gave  rise  to  such  rights  and  mortgages. 


211  OF  DONATIONS  AND  TESTAMENTS.  21 

Section  II. — Of  the  form  of  Donations  inter  vivos. 

Art.  1.523. — An  act  shall  bo  passed  before  a  notary  public  and  two 
witnesses  of  every  donation  inter  vivos  of  immovable  property,  of  slaves 
or  incorporeal  things,  such  as  rents,  credits,  rights  or  actions,  under  tho 
penalty  of  nullity. 

S  N.  S.  12G  ;  2  L.  209  ;  IG  L.  271 ;  3  R.  73;  12  K.  76;  1  A.  237;  2  A  724 

Art.  1524. — No  feigned  delivery  of  immovables  or  slaves  given 
shall  have  effect  against  third  persons. 

Art.  1525. — A  donation  inter  vivos,  even  of  movable  effects, 
will  not  be  valid,  unless  an  act  be  passed  of  the  same,  as  is  before  pre- 
scribed. 

Such  an  act  ought  to  contain  a  detailed  estimate  of  the  effects  given. 

4  N.  S.  464 ;  17  L.  305 ;  3  E.  78 ;  6  A.  766. 

Art.  1526. — The  manual  gift,  that  is,  the  giving  of  corporeal  mov- 
able effects  accompanied  by  a  real  delivery,  is  not  subject  to  any  forma- 
lity. 

See  12  R.  76. 

Art.  1527. — A  donation  inter  vivos  shall  be  binding  on  the  donor, 
and  shall  produce  effect  only  from  the  day  of  its  being  accepted  in  pre- 
cise terms. 

The  acceptance  may  be  made  during  the  lifetime  of  the  donor  by  a 
posterior  and  authentic  act,  but  in  that  case  the  donation  shall  have 
effect,  with  regard  to  the  donor,  only  from  the  day  of  his  being  notified 
of  the  act  establishing  that  acceptance. 

6  L.  231,  245  ;  13  L.  404. 

Art.  1528. — Yet  if  the  donation  has  been  executed,  that  is,  if  the 
donee  has  been  put  by  the  donor  into  corporal  possession  of  the  effects 
given,  the  donation,  though  not  accepted  in  express  terms,  has  full 
effect. 

2  L.  88. 

Art.  1529. — If  the  donee  be  of  full  age,  the  acceptance  may  bo 
made  by  him,  or  in  his  name  by  his  attorney  in  fact  having  special 
power  to  accept  the  donation  which  is  made,  or  a  general  power  to  accept 
tho  donations  that  have  been  or  may  be  made. 

Sec  6  L.  231 ;  2  L.  335. 

Art.  1530. — The  acceptance  can  only  be  made  by  the  donee  person- 
ally, or  by  his  attorney  in  fact  during  his  life.  If  he  refuse  or  neglect 
to  accept,  his  creditors  cannot  accept  it  in  his  stead,  under  the  pretext 
that  the  refusal  has  been  in  fraud  of  their  rights. 

Art.  1531. — If  the  donee  die  before  having  accepted,  the  acceptance 
cannot  be  made  by  his  heirs,  and  tho  donation  remains  without  effect. 

Art.  1532. — A  married  woman  cannot  accept  a  donation  without 
the  consent  of  lier  husband,  and  in  case  of  the  husband's  refusal,  with- 
out being  authorized  by  the  judge,  conformably  to  what  is  prescribed  in 
the  title  of  husband  and  ivife. 

Art.  1533. — A  donation  made  to  a  minor  under  the  age  of  puberty, 
must  be  accepted  by  his  tutor. 

A  minor  arrived  at  the  age  of  puberty,  but  not  emancipated,  must 
accept  it  under  the  authorization,  or  with  the  concurrence  of  his  curator. 


212  OF  DONATIONS  AND  TESTAMENTS. 

Nevertheless  the  parents  of  a  minor,  whether  he  be  arrived  at  the 
age  of  puberty  or  not,  whether  he  be  or  be  not  emancipated,  and  the 
other  legitimate  descendants,  even  in  the  lifetime  of  the  parents,  though 
they  be  neither  tutors  nor  curators  to  the  minor,  ma^-  accept  for  him. 

6  L.  231,  245. 

Art.  1534. — If  a  donee,  being  of  full  age,  be  under  interdiction, 
the  acceptance  is  made  ibr  him  by  his  curator. 

Art.  1535. — A  person  deaf  and  dumb,  knowing  how  to  write,  may 
accept  for  himself,  or  by  an  attorney  in  fact. 

If  he  cannot  write,  the  acceptance  shall  be  made  by  a  curator  ap- 
pointed by  the  judge  for  that  purpose. 

Art.  153G. — Donations  made  for  the  benefit  of  an  hospital,  of  the 
poor  of  a  community,  or  of  establishments  of  public  utility,  shall  be  ac- 
cepted by  the  administrators  of  such  communities  or  establishments. 

ITL.  46,  312;  2  E.  4.3S. 

Art.  1537. — A  donation  duly  accepted  is  perfect  by  the  mere  con- 
sent of  the  parties  ;  and  the  property  of  the  objects  given  is  transferred 
to  the  donee,  without  the  necessity  of  any  other  delivei-y. 

Art.  1538. — The  property  given  passes  to  the  donee  with  all  its 
charges,  even  those  which  the  donor  has  imposed  between  the  time  of 
the  donation  and  that  of  the  acceptance. 

Art.  1539. — The  universal  donee  is  bound  to  pay  the  debts  of  the 
donor  which  existed  at  the  time  of  the  donation,  but  he  can  discharge 
himself  therefrom  by  abandoning  the  property  given. 

Art.  1540. — If  the  whole  of  the  effects  of  the  donor  have  been  given 
to  several  donees,  each  for  a  certain  proportion,  each  of  them  is  bound 
for  the  debts  for  the  portion  of  which  he  is  the  donee. 

Art.  1541. — When  the  donation  comprehends  property  that  may 
legally  be  mortgaged,  the  act  of  donation,  as  well  as  the  act  of  accept- 
ance, whether  the  acceptance  be  made  by  the  same  or  a  separate  act, 
must  be  registered  within  the  time  prescribed  for  the  registry  of  mort- 
gages, in  a  separate  book  kept  for  that  purpose  by  the  register  of  mort- 
gages, Avhich  jjook  shall  be  open  to  the  inspection  of  all  parties  requiring 
it. 

Art.  1542, — This  registry  shall  be  made  at  the  instance  of  the  hus- 
band, when  the  property  has  been  given  to  his  wife ;  and  if  the  husband 
does  not  comply  with  this  formality,  the  wife  may  cause  it  to  be  com- 
plied with,  without  requiring  authorization  for  that  pvirpose. 

Art.  1543. — When  the  donation  is  made  to  minors,  to  persons 
under  interdiction,  or  to  public  establishments,  the  registry  shall  be 
made  at  the  instance  of  the  tutors,  curators  or  administrators. 

Art.  1544. — The  want  of  registry  may  be  pleaded  by  all  persons 
concerned  except  the  donor,  those  persons  whose  duty  it  was  to  cause 
the  registry  to  be  made,  and  their  representatives. 

Art.  1545. — Minors,  persons  under  interdiction,  or  married  women, 
are  not  entitled  to  relief  for  the  want  of  acceptance  or  registry  of  dona- 
tions ;  but  they  have  in  such  case  their  resource  against  their  tutors, 
curators  or  husbands  ;  and  even  in  case  of  the  insolvency  of  such  tutors, 
curators  or  husbands,  they  shall  not  be  entitled  to  relief  by  way  of  res- 
titution. 


213  OF  DONATIONS  AND  TESTAMENTS.  212 

Section  III.— 0/"  the  Exception  to  the  Rule  of  the  Irrevocability  oj 
Donations  Inter  Vivos. 

Art.  1546. — Donations  ijiter  vivos  are  liable  to  be  revoked  or  d-.s- 
solvcd  on  account  of  the  following  causes  : 

1 .  The  ingratitude  of  the  donee  ; 

2.  The  non-fulfilment  of  the  eventual  conditions  which  suspend 
their  consummation ; 

3.  The  non-performance  of  the  conditions  imposed  on  the  donee  ; 

4.  The  donor's  having  children  after  the  donation ; 

5.  The  legal  or  conventional  return. 

17  L.  365. 

Art.  1547. — Revocation  on  account  of  ingratitude  can  take  place 
only  in  the  three  following  cases  : 

1.  If  the  donee  has  attempted  to  take  the  life  of  the  donor; 

2.  If  he  has  been  guilty  towards  him  of  cruel  treatment,  crimes  or 
grievous  injuries ; 

3.  If  he  has  refused  him  food  when  in  distress. 

17  L.  865;  It  E.  302. 

Art.  1548. — An  action  of  revocation  for  cause  of  ingratitude  must  be 
brought  within  one  year  from  the  day  of  the  act  of  ingratitude,  imputed 
by  the  donor  to  the  donee,  or  from  the  day  that  the  act  was  made  known 
to  the  donor. 

This  revocation  cannot  be  sued  for  by  the  donor  against  the  heirs 
of  the  donee,  nor  by  the  heirs  of  the  donor  against  the  donee  ;  unless  in 
the  latter  case  the  suit  was  brought  by  the  donor,  or  he  died  within  the 
year  in  which  the  act  of  ingratitude  was  committed. 

17  L.  365. 

Art.  1549. — Revocation  for  cause  of  ingratitude  affects  neither  the 
alienation  made  by  the  donee  nor  the  mortgages,  nor  the  real  incum- 
brances he  may  have  laid  on  the  thing  given,  provided  such  transactions 
were  anterior  to  the  bringing  of  the  suit  of  revocation. 

Art.  1550. — In  case  of  revocation  for  cause  of  ingratitude,  the 
donee  shall  be  obliged  to  restore  the  value  of  the  thing  given,  estimating 
such  value  according  to  its  worth  at  the  time  of  bringing  the  action,  and 
the  proceeds  from  the  day  that  it  is  brought. 

Art.  1551. — Donations  in  consideration  of  marriage  are  not  revo- 
cable for  cause  of  ingratitude,  when  there  are  children  of  that  marriage. 

When  there  are  not,  the  revocation  takes  place  with  regard  to  the 
donee,  but  without  impairing  the  rights  resulting  from  the  marriage  in 
favor  of  the  other  party  to  the  marriage. 

Akt.  1552. — When  an  eventual  condition,  which  suspends  the  exe- 
cution of  a  donation,  can  no  longer  be  accomplished,  as  if  the  donation 
was  to  be  executed  on  the  arrival  of  a  certain  vessel,  and  the  vessel  is 
lost,  the  donation  is  dissolved  of  right. 

Art.  1553. — But  if  the  condition  be  potestative,  that  is,  if  the 
donee  is  obliged  to  perform  or  prevent  them,  their  non-fulfilment  does 
not,  of  riglit,  operate  a  dissolution  of  the  donation  ;  it  must  be  sued  for 
and  decreed  judicially. 

Art.  1554. — An  action  of  revocation  or  rescission  of  a  donation  on 
account  of  the  non-execution  of  the  conditions  imposed  on  the  donee,  is 


214  OF  DONATIONS  AND  TESTAMENTS. 

subject  only  to  the  usual  prescription,  which  runs  only  from  the  day 
that  the  donee  ceased  to  fulfil  his  obligations. 

Art.  1555. — In  case  of  revocation  or  rescission  on  account  of  the 
non-execution  of  the  conditions,  the  property  shall  return  to  the  donor 
free  from  all  encumbrances  or  mortgages  created  by  the  donee ;  and  the 
donor  shall  have,  against  any  other  persons  possessing  the  immovable 
property  given,  all  the  rights  that  he  would  have  against  the  donee 
himself 

Art.  155G. — All  donations  mter  vivos,  made  by  persons  having 
neither  children  nor  descendants  actually  living  at  the  time  of  the 
donation,  of  whatever  value  those  donations  may  be,  and  on  whatever 
account  they  may  have  been  made,  should  they  even  be  mutual,  not 
excepting  such  as  were  made  in  favor  of  marriage  by  any  but  the 
ascendants  of  the  married  persons,  or  by  the  one  of  them  to  the  other, 
shall  be  considered  as  revoked  up  to  the  disposable  portion  by  the  birth 
of  children  to  the  donor,  even  of  a  posthumous  child,  or  by  the  legiti- 
mation of  a  natural  child  by  a  subsequent  marriage,  if  the  child  be  born 
since  the  donation. 

17  L.  805 ;  3  E.  441 ;  See  8  M.  707 ;  1  N.  S.  465. 

Art.  1557. — That  revocation  takes  place  even  though  the  child  of 
the  donor  Avere  conceived  at  the  time  of  the  donation. 

Art.  1558. — The  property  comprised  in  a  donation  revoked  shall 
return  to  the  estate  of  the  donor,  free  from  all  charges  and  mortgages, 
impo'^ed  upon  it  by  the  donee.  It  is  not  liable  to  the  restitution  of  the 
dowry  of  his  wife,  or  to  any  other  matrimonial  obligations  whatever, 
even  in  default  of  other  property ;  and  this  shall  takte  place  even  though 
the  donation  be  made  in  favor  of  the  marriage  of  the  donee,  and 
inserted  in  the  contract,  and  though  the  donor  bound  himself  as  security 
by  the  donation  to  the  execution  of  the  contract. 

Art.  1559. — Donations,  thus  revoked,  cannot  be  revived  nor  become 
again  effectual,  cither  by  the  death  of  the  donor's  child  or  by  any  con- 
firmative act ;  and  if  the  donor  desires  to  give  the  same  property  to  the 
same  donee,  either  before  or  after  the  death  of  the  child,  by  whose  birth 
the  donation  has  been  revoked,  he  can  do  it  only  by  a  new  disposition. 

Art.  15G0. — Every  clause  or  agreement,  by  which  the  donor  may 
have  renounced  the  revocation  of  the  donation  on  account  of  the  birth 
of  a  child,  shall  be  held  null  and  of  no  effect. 

Art.  15G1. — The  donee,  his  heirs  or  assigns  cannot  plead  prescrip- 
tion in  support  of  the  donation  revoked  by  the  birth  of  a  child,  until 
after  a  possession  of  thirty  years,  to  commence  only  after  the  day  of  the 
birth  of  the  last  of  the  donor's  children,  be  the  children  even  posthu- 
mous :  and  this  prescription  is  liable  to  all  legal  interruptions. 

Art.  1562. — In  all  cases,  in  which  the  donation  is  revoked  or  dis- 
solved, the  donee  is  not  bound  to  restore  the  fruits  by  him  gathered 
previous  to  the  demand  for  the  revocation  or  rescission. 

]iut  in  case  of  the  non-fulfilment  of  conditions,  which  the  donee  is 
bound  to  fulfil,  if  it  be  proved  to  have  proceeded  from  liis  fault,  he  may 
be  condemned  to  restore  the  fruits  by  him  received  since  his  neglect  to 
fulfil  the  conditions. 


215  OF  DONATIONS  AND  TESTAMENTS.  2 IS 

CHAPTEK  VI. 

OF  DISPOSITIONS  MORTIS  CAUSA  (IN  PROSPECT  OF  DEATH). 

Section  I. — Of  the  Testament. 

Art.  15G3, — No  disposition  mortis  causa  shall  henceforth  be  made 
otherwise  than  by  last  will  or  testament.     All  other  form  is  abrogated. 

But  the  name  given  to  the  act  of  last  will  is  of  no  importance,  and 
dispositions  may  be  made  by  testament  under  this  title,  or  under  that 
of  institution  of  heir,  of  legacy,  codicil,  donation  mortis  causa,  or  under 
any  otlier  name  indicating  the  last  will,  provided  that  the  act  be  clothed 
with  the  forms  required  for  the  validity  of  a  testament,  and  the  clauses 
it  contains,  or  the  manner  in  which  it  is  made  clearly  establish  tliat  it 
is  a  disposition  of  last  will. 

Thus  an  act  of  last  will,  by  which  an  individual  disposes  of  his 
property  or  of  part  tliereof,  in  any  manner  whatsoever,  whether  he  has 
instituted  an  heir  or  only  named  legatees,  whether  he  has  or  has  not 
charged  any  one  with  the  execution  of  his  last  will,  is  considered  as  a 
testament,  if  it  be,  in  other  respects,  clothed  with  the  formalities  re- 
quired by  law. 

3K.  78,  411;  17  L.  144;  2  A.  30. 

Art.  1564. — A  testament  is  the  act  of  last  will  clothed  with  certain 
solemnities,  by  which  the  testator  disposes  of  his  property,  either  uni- 
versally or  by  universal  title,  or  by  particular  title. 

Art.  1565. — A  testament  cannot  be  made  by  the  same  act,  by  two 
or  more  persons,  either  for  the  benefit  of  a  third  person,  or  under  the 
title  of  a  reciprocal  or  mutual  disposition. 

Art.  1566. — The  custom  of  willing  by  testament,  by  the  intervention 
of  a  commissary  or  attorney  in  fact  is  abolished. 

Thus  the  institution  of  heir  and  all  other  testamentary  dispositions 
committed  to  the  choice  of  a  third  person,  are  null,  even  should  that 
choice  have  been  limited  to  a  certain  number  of  persons  designated  by 
the  testator. 

Section  II. —  General  Rules  on  the  Form  of  Testaments. 

Art.  1567. — All  testaments  are  divided  into  three  principal  classes, 
to  wit : 

1.  Nuncupative  or  open  testaments; 

2.  M3'6tic  or  sealed  testaments ; 

3.  Olographic  testaments. 

Art.  1568. — Testaments,  whether  nuncupative  or  mystic,  must  be 
drawn  up  in  writing,  either  by  the  testator  himself  or  by  some  other  per- 
son, under  his  dictation. 

C  L.  722. 

Art.  1 569. — The  custom  of  making  verbal  testaments,  that  is  to  say, 
resulting  from  tlie  mere  deposition  of  witnesses,  who  were  present  when 
the  testator  made  known  to  them  his  will,  without  his  having  committed 
it  or  caused  it  to  be  committed  to  writing,  is  abrogated. 


216  OF  DOXATIOXS  AND  TESTAMENTS. 

Art.  1570. — Nuncupative  testaments  may  be  made  by  public  act,  or 
by  act  under  private  signature. 

Art.  1571. — The  nuncupative  testaments  by  public  act  must  be  re- 
ceived by  a  notary  public,  in  presence  of  three  witnesses  residing  in  the 
place  where  ihe  will  is  executed,  or  of  five  witnesses  not  residing  in  the 
place. 

This  testament  must  be  dictated  by  the  testator,  and  written  by  the 
notary  as  it  is  dictated. 

It  must  then  be  read  to  the  testator  in  presence  of  the  witnesses. 

Express  mention  is  made  of  the  whole,  observing  that  all  those  for- 
malities must  be  fulfilled  at  one  time,  without  interruption  and  without 
turning  aside  to  other  acts. 

5  L.  100 ;  9  L.  458;  11  L.  361 ;  12  L.  114.  4^9 ;  13  L.  104 ;  10  L.  SO ;  15  L.  25;  12  K.  35,  C39 ;  5  A.  5G5; 
1  N.  S.  73 ;  3  N.  S.  367 ;  6  N.  S.  143 ;  6  N.  S.  263 ;  3  N.  S.  458. 

Art.  1572. — This  testament  must  be  signed  by  the  testator  ;  if  he 
declares  that  he  knows  not  how,  or  is  not  able  to  sign,  express  mention 
of  his  declaration,  as  also  of  the  cause  that  hinders  him  from  signing, 
must  be  made  in  the  act. 

See  12  L.  439. 

Art.  1573. — This  testament  must  be  signed  by  the  witnesses,  or  at 
least  by  one  of  them  for  all,  if  the  others  cannot  write. 

Art.  1574. — A  nuncupative  testament,  under  private  signature,  must 
be  written  by  the  testator  himself  or  by  any  other  person,  from  his  dic- 
tation ;  or  even  by  one  of  the  witnesses,  in  presence  of  five  witnesses 
residing  in  the  place  where  the  will  is  received,  or  of  seven  witnesses 
residing  out  of  that  place  ; 

Or  it  will  suffice  if,  in  the  presence  of  the  same  number  of  witnesses, 
the  testator  presents  the  paper,  on  which  he  has  written  his  testament, 
or  caused  it  to  be  written  out  of  their  presence,  declaring  to  them  that 
that  paper  contains  his  last  will. 

6  L.  722 ;  12  L.  483 ;  15  L.  28 ;  17  L.  4 ;  1  E.  48,  359  ;  2  A.  721 ;  1  N.  S.  577. 

Art.  1575. — In  either  case,  the  testament  must  be  read  by  the  tes- 
tator to  the  witnesses,  or  by  one  of  the  witnesses  to  the  rest,  in  presence 
of  the  testator;  it  must  be  signed  by  the  testator,  if  he  knows  how  or  is 
able  to  sign,  and  by  the  witnesses  or  at  least  by  two  of  them,  in  case  the 
others  know  not  how  to  sign,  and  those  of  the  witnesses  who  do  not  know 
how  to  sign,  must  affix  their  mark. 

This  testament  is  subject  to  no  other  formality  than  those  prescribed 
by  this  and  the  preceding  article. 

2  A.  724;  6  A.  21.3. 

Art.  1576. — In  the  country  it  suffices  for  the  validity  of  nuncupa- 
tive testaments  under  private  signature,  if  the  testament  be  passed  in 
the  presence  of  three  witnesses  residing  in  the  place  where  the  testa- 
ment is  received,  or  of  five  witnesses  residing  out  of  that  place,  provided 
that  in  this  case  a  greater  number  of  witnesses  cannot  be  had. 

6  L.  722 ;  12  L.  483  ;  15  L.  28  ;  1  E.  48,  359  ;  2  A.  724  ;  See  1  N.  S.  4SS  ;  12  M.  503. 

Art.  1577. — The  mystic  or  secret  testament,  otherwise  called  the 
closed  testament,  is  made  in  the  following  manner  : 

The  testator  must  sign  his  dispositions,  whether  he  has  written  them 
himself,  or  has  caused  them  to  be  written  "by  another  person. 


217  OF  DONATIONS  AND  TESTAMENTS.  217 

The  paper  containing  those  dispositions,  oi-  the  paper  serving  as  their 
envelope,  must  be  closed  and  sealed. 

The  testator  shall  present  it  thus  closed  and  scaled  to  the  notary  and 
to  seven  witnesses,  or  he  shall  cause  it  to  bo  closed  and  sealed  in  their 
presence.  Then  he  shall  declare  to  the  notary,  in  presence  of  the  wit- 
nesses, that  that  paper  contains  his  testament  written  by  himself,  or  by 
another  by  his  direction,  and  signed  by  him  the  testator.  The  notary 
shall  then  draw  up  the  act  of  superscription,  which  shall  be  written  on 
that  paper  or  on  the  sheet  that  serves  as  its  envelope,  and  tliat  act  shall 
be  signed  by  the  testator,  and  by  the  notary  and  the  witnesses. 

5L.  8S7;  10  L.  319;  15  L.  88. 

Art.  1578. — All  that  is  above  prescribed  shall  be  done  without  in- 
terruption or  turning  aside  to  other  acts ;  and  in  case  the  testator,  by 
reason  of  any  hindrance  that  has  happened  since  the  signing  of  the  tes- 
tament, cannot  sign  the  act  of  superscription,  mention  shall  be  made  of 
the  declaration  made  by  him  thereof,  without  it  being  necessary,  in  that 
case,  to  increase  the  number  of  witnesses. 

1  N.  S.  73  ;  10  L.  319  ;  15  L.  SS ;  Sec  12  R.  639. 

Art.  1579. — Those  Avho  know  not  how  or  are  not  able  to  write,  and 
those  who  know  not  how  or  are  not  able  to  sign  their  names,  cannot  make 
dispositions  in  the  form  of  the  mystic  will. 

Art.  1580. — If  any  one  of  the  witnesses  to  the  act  of  superscription 
know  not  how  to  sign,  express  mention  shall  be  made  thereof. 
In  all  cases,  the  act  must  be  signed  at  least  by  two  witnesses. 

Art.  1581. — The  olographic  testament  is  that  which  is  written  by 
the  testator  himself. 

In  order  to  be  valid,  it  must  be  entii-ely  written,  dated  and  signed  bj 
the  hand  of  the  testatoi-.  It  is  subject  to  no  other  form,  and  may.be  made 
any  where,  even  out  of  the  State. 

IT  L.  4 ;  2  K.  42T ;  3  A.  579;  Seo  12  M.  713 ;  5  M.  1C9. 

Art.  1582. — Erasures  not  approved  by  the  testator  are  considered 
as  not  made ;  and  words  added  by  the  hand  of  another,  as  not  written. 

If  the  erasures  are  not  so  made  as  to  render  it  impossible  to  distin- 
guish the  words  covered  by  tliem,  it  shall  be  left  to  the  discretion  of  the 
judge  to  declare  if  he  considers  them  important,  and  in  this  case  only  to 
decree  the  nullity  of  the  testament. 

Art.  1583. — It  suffices,  for  the  validity  of  a  testament,  that  it  be 
valid  under  any  one  of  the  forms  prescribed  by  law,  however  defective 
it  may  be  in  the  form  under  which  the  testator  may  have  intended  to 
make  it. 

15  L.  28;  6  N.  S.  203 ;  5  M.  169 ;  12  E.  35 ;  2  A.  607. 

Art.  1584. — The  following  persons  are  absolutely  incapable  of  being 
witnesses  to  testaments : 

1.  Women  of  what  age  soever; 

2.  Male  children  who  have  not  attained  the  age  of  sixteen  years  com- 
plete ; 

3.  Persons  insane,  deaf,  dumb  or  blind ; 

•1.  Persons  whom  the  criminal  laws  declare  incapable  of  exercising 
civil  functions; 


218  OF  DONATIONS  A^D  TESTAMENTS. 

5.  Slaves. 

nL.361;  12  1*25;  2  A.  667. 

Art.  15S5. — Neither  can  testaments  be  Avitucssed  by  those  who  ar^ 
constituted  heirs  or  named  legatees,  under  whatsoever  title  it  may  be. 

12  R.  638. 

Art.  1586. — Mystic  testaments  are  excepted  from  the  preceding  ar- 
ticle. 

Art.  1587. — By  the  residence  of  the  witnesses  in  the  place  where 
the  testament  is  executed,  is  understood  their  residence  in  the  parish 
where  that  testament  is  made ;  that  residence  is  necessary  only  when  it 
is  expressly  required  by  law. 

5L.100;  6L.  722. 

Art.  1588. — The  formalities,  to  which  testsnnents  are  subject  by  the 
provisions  of  the  present  section,  must  be  observed ;  otherwise  the  tes- 
taments are  null  and  void. 

5L.  100,387;  6  L.  722 ;  10  L.  319;  IGL.SO;  12  R.G5;  3A.579;  6  A.  243. 

Art.  1589. — But  testaments  made  in  foreign  countries,  or  in  the 
other  States  and  territories  of  tlie  Union,  sliall  take  eflFect  in  this  State, 
if  they  be  clothed  with  all  the  formalities  prescribed  for  the  validity  of 
wills  in  the  place  where  they  have  been  respectively  made. 

8  L.  635 ;  S  N.  S.  232 ;  7  L.  135 ;  3"R.  235 ;  3  A.  579  ;  See  C.  P.  Ai-t  924  and  amendments ;  Sec  6  M. 

568,  C42 ;  5  N.  S.  48. 


Section  III. — Particular  Rules  on  the  Form  of  crtain  Testaments. 

Art.  1590. — The  wills  of  persons  employed  in  armies  in  the  field,  or 
in  a  military  expedition,  may  be  received  by  a  commissioned  officer,  in 
presence  of  two  witnesses. 

Art.  1591. — If  the  testator  is  sick  or  wounded,  they  may  be  received 
by  the  physician  or  surgeon  attending  him,  assisted  by  two  witnesses. 

Art.  1592. — These  testaments  are  subject  to  no  other  formalities 
than  that  of  being  reduced  to  writing,  and  being  signed  by  the  testator, 
if  he  can  write,  by  the  persons  receiving  them,  and  by  the  witnesses. 

Art.  1593. — The  testament,  made  in  the  form  abo^e  prescribed, 
sliall  be  null,  six  months  after  the  return  of  the  testator  to  a  place,  where 
he  has  an  opportunity  to  employ  the  ordinary  forms. 

Art.  1594. — Testaments,  made  during  a  voyage  at  sea,  may  \q  re- 
ceived by  tlie  captain  or  master,  in  i^resence  of  three  witnesses  taken  by 
preference  from  among  the  passengers ;  in  default  of  passengers,  from 
among  the  crew. 

Art.  1595. — The  testament  made  at  sea,  can  contain  no  disposition 
in  favor  of  any  of  the  persons  employed  on  board  the  vessel,  unless  they 
be  relations  of  the  testator. 

Art.  1596. — This  testament,  like  the  preceding  one,  is  subject  to  no 
other  formality  than  that  of  being  reduced  to  writing,  and  being  signed 
by  the  testator,  if  he  can  write,  by  him  who  receives  it,  and  by  those  in 
whose  presence  it  is  received. 


219  OF  DONATIONS  AND  TESTAMENTS.  219 

Art.  1597. — The  testament  made  at  sea  shall  not  be  valid  unless  the 
testator  dies  at  sea,  or  within  three  months  after  he  has  landed  in  a  place, 
where  he  is  able  to  make  it  in  the  ordinary  forms. 

Section  IV. — Of  Testamentary  Disjjositions. 

Art.  1598. — Testamentary  dispositions  are  either  universal,  under 
an  universal  title,  or  undqr  a  particular  title. 

Each  of  these  dispositions,  whether  it  be  made  under  the  name  of 
institution  of  heir,  or  under  the  name  of  legacy,  shall  have  its  effect,  ac- 
cording to  the  rules  hereafter  established  for  universal  legacies,  for  lega- 
cies under  an  universal  title,  and  for  particular  legacies. 

8  L.  489 ;  IT  L.  46. 

§  1. —  Of  Unitersal  Legacies. 

Art.  1599. — An  universal  legacy  is  a  testamentary  disposition,  by 
which  the  testator  gives  to  one  or  several  persons  the  whole  of  the  pro- 
perty which  he  leaves  at  his  decease. 

2  R.  1 ;  10  R.  512  ;  12  R.  5G. 

Art.  1600. — When,  at  the  decease  of  the  testator,  there  are  heirs  to 
whom  a  certain  proportion  of  the  property  is  reserved  by  law,  these  heirs 
are  seized  of  right,  by  his  death,  of  all  the  effects  of  the  succession,  and 
the  universal  legatee  is  bound  to  demand  of  them  the  delivery  of  the 
effects  included  in  the  testament. 

8  K  489 ;  15  L.  5G2 ;  3  A.  805. 

Art.  1601. — Nevertheless,  in  the  same  case,  the  universal  legatee 
will  have  the  enjoyment  of  the  effects  included  in  the  testament,  from  the 
day  of  the  decease,  if  the  demand  for  the  delivery  lias  been  made  within 
a  year  from  that  period  ;  if  not,  this  enjoyment  will  only  commence  from 
the  day  of  the  judicial  demand,  or  from  the  day  on  which  the  delivery 
has  been  agreed  upon. 

Art.  1602. — When,  at  the  decease  of  the  testator,  there  are  no  heirs, 
to  whom  a  proportion  of  his  proj^erty  is  reserved  by  law,  the  universal 
legatee,  by  the  death  of  the  testator,  is  seized  of  right  of  the  effects  of 
the  succession,  without  being  bound  to  demand  the  delivery  thereof. 

8  L.  489 ;  15  L.  562  ;  10  R.  512  ;  8  A.  705 ;  12  R.  56. 

Art,  1603. — The  universal  legatee,  who  concurs  witli  an  heir  to 
whom  the  law  has  reserved  a  certain  proportion  of  the  effects  of  the  suc- 
cessj^i,  is  bound  for  the  debts  and  cliarges  of  the  succession  personally 
for  his  part  and  proportion,  and  in  case  of  mortgage  on  his  part,  for  the 
whole ;  and  he  is  bound  to  discharge  all  the  legacies,  saving  the  case  of 
reduction. 

2R.  382;  10  R.  512;  12  R.  56. 

§  2. — Of  Legacies  under  an  Universal  Title. 

Art.  1604. — The  legacy,  under  an  universal  title,  is  that  by  which  a 
testator  bcqueatlies  a  certain  proportion  of  the  effects  of  which  the  law 
permits  him  to  dispose,  as  an  half,  a  third,  or  all  his  immovables,  or  all 
his  movables,  or  a  fixed  proportion  of  all  hie  immovables  or  of  all  hia 
movables. 

8L.48;  12U.  56;  5  A.  199. 


220  OF  DONATIONS  AND  TESTAMENTS. 

Art.  1605. — Legatees  under  an  xmivcrsal  title  arc  bound  to  demand 
the  delivery  of  the  heirs,  to  whom  a  proportion  of  the  effects  is  reserved 
by  law;  in  default  of  heirs,  of  the  universal  legatees;  and  in  default  of 
those,  of  the  next  heirs  in  the  order  established  in  the  title  of  succes- 
sions. 

Art.  1606. — The  legatee  under  an  universal  title  is  bound,  like  the 
universal  legatee,  for  the  debts  and  charges  of  the  succession,  personally 
for  his  part,  and  in  case  of  mortgage  on  his  portion,  for  the  whole. 

SL.  43;  5  A.  199. 

Art.  1607. — When  the  testator  has  disposed  only  of  a  part  of 
the  disposable  portion,  and  has  done  it  under  an  universal  title,  the 
legatee  under  this  title  is  bound  to  contribute  with  his  natural  heirs  to 
the  payment  of  particular  legacies. 

Art.  1608. — In  no  case  can  the  instituted  heir,  under  whatever  title 
he  may  be,  claim  the  falcidian  portion,  that  is,  the  fourth  which  the  law 
authorized  the  testamentary  heir  to  retain  from  the  succession,  in  case 
more  than  three-fourths  of  it  were  absorbed  by  the  legacies ;  this  right 
being  abolished. 


§  3. —  Of  Disinherison. 

Art.  1609. — Forced  heirs  may  be  deprived  of  their  legitime,  or 
legal  portion,  and  of  the  seisin  granted  them  by  law,  by  the  effect  of 
disinherison  by  the  testator,  for  just  cause,  and  in  the  manner  hereafter 
prescribed. 

Art.  1610. — A  disinherison,  to  be  valid,  must  be  made  in  one  of 
the  forms  prescribed  for  testaments. 

Art.  1611. — The  disinherison  must  be  made  byname  and  expressly, 
and  for  a  just  cause,  otherwise  it  is  null. 

Art.  1612. — There  are  no  just  causes  of  disinherison  but  thoso 
expressly  recognized  by  law,  in  the  following  articles. 

Art.  1613. — The  just  causes  for  which  pirents  may  disinherit  their 
children,  are  ten  in  number,  to  wit : 

1.  If  the  child  has  raised  his  or  her  hand  to  strike  the  parent,  or  if 
he  or  she  has  really  struck  the  parent ;  but  a  mere  threat  is  not  suffi- 
cient ; 

2.  If  the  child  has  been  guilty,  towards  a  parent,  of  cruclt}^,  of  a 
crime  or  grievous  injury; 

3.  If  the  child  has  attempted  to  take  the  life  of  cither  parent ; 

4.  If  the  child  has  accused  a  parent  of  any  capital  crime,  except, 
however,  that  of  high  treason  ; 

5.  If  the  child  has  refused  sustenance  to  a  parent,  having  the  meauf* 
to  afford  it ; 

6.  If  the  child  has  neglected  to  take  care  of  a  parent,  become  insane  ; 

7.  If  the  child  refused  to  ransom  them,  when  detained  in  captivity ; 

8.  If  the  child  used  any  act  of  violence  or  coercion  to  hinder  a  parent 
from  making  a  will ; 

9.  If  the  child  has  refused  to  become  security  for  a  parent,  having 
the  means,  in  order  to  take  him  out  of  prison ; 


221  OF  DONATIONS  AND  TESTAMENTS.  221 

10.  If  the  son  or  daughter,  being  a  minor,  marries  without  the  con 
sent  of  his  or  her  parents. 

2  L.  581 ;  2  A.  293. 

Ai;t.  1G14. — The  ascendants  may  disinherit  their  legitimate  de- 
scendants, coming  to  their  succession,  for  the  first  nine  causes  expressed 
in  the  preceding  article,  when  the  acts  of  ingratitude  there  mentioned 
have  been  committed  towards  them,  instead  of  towards  their  parents  ; 
but  they  cannot  disinherit  their  descendants  for  the  latter  cause. 

Art.  1615. — Legitimate  children,  dying  without  issue,  and  leaving 
a  parent,  cannot  disinherit  him  or  her,  unless  for  the  seven  following 
causes,  to  wit : 

1.  If  the  parent  has  accused  the  child  of  a  capital  crime,  except, 
however,  the  crime  of  high  treason  ; 

2.  If  the  parent  has  attempted  to  take  the  child's  life ; 

3.  If  the  parent  has,  by  any  violence  or  force,  hindered  the  child 
from  making  a  will ; 

4.  If  the  parent  has  refused  sustenance  to  the  child  in  necessity, 
having  the  means  of  aifording  it ; 

5.  If  the  parent  has  neglected  to  take  care  of  the  child,  while  in  a 
state  of  insanity  ; 

6.  If  the  parent  has  neglected  to  ransom  the  child,  when  in  cap- 
tivity ; 

7.  If  the  father  or  mother  have  attempted  the  life  the  one  of  the 
other,  in  which  case  the  child  or  descendant,  making  a  will,  may  disin- 
herit the  one  who  has  attempted  the  life  of  the  other. 

Art.  1616. — The  testator  must  express  in  the  will  for  whal  reasons 
he  disinherited  his  forced  heirs  or  any  of  them,  and  the  other  heirs  of 
the  testator  are  moreover  obliged  to  prove  the  fr.cts  on  which  the  disin- 
herison is  founded,  otherwise  it  is  null. 

Art.  1617. — When  all  the  forced  heirs  have  been  legally  disin- 
herited, the  heir  instituted  universally  is  seized  in  full  right  of  the 
succession,  without  being  bound  to  demand  the  delivery  of  it,  in  the 
same  manner'  as  if  there  were  no  forced  heirs,  conformably  to  what  is 
prescribed  above. 

§  4. —  Of  FarticuJar  Legacies. 

Art.  1618. — Every  legacy,  not  included  in  the  definition  before 
given  of  universal  legacies  and  legacies  under  an  universal  title,  is  a 
legacy  under  a  particular  title. 

Art.  1619. — Every  legacy  under  a  particular  title  gives  to  the 
legatee,  from  the  day  of  the  testator's  death,  a  right  to  the  thing  be- 
queathed, which  right  may  be  transmitted  to  his  heirs  or  assigns ;  and 
this  takes  place  as  well  in  testamentary  dispositions,  universal  or  under 
an  universal  title,  as  in  those  made  under  a  particular  title. 

Nevertheless,  the  particular  legatee  can  take  possession  of  the  thing 
bequeathed,  or  claim  the  proceeds  or  interest  thereof,  only  from  the  day 
the  demand  of  delivery  was  formed,  according  to  the  order  herein  before 
established,  or  from  the  day  on  which  that  delivery  was  voluntarily 
granted  to  him. 

17  L.  812. 


222  OF  DONATIONS  AND  TESTAMENTS. 

Art.  1620. — The  legatee  is  not  bound  to  demand  the  delivery  of 
the  legacy,  if  the  thing  bequeathed  to  him  is  in  his  possession  at  the 
time  of  the  opening  of  the  succession,  but  he  is  bound  to  give  it  up  for 
the  purpose  of  contributing  to  the  payment  of  debts,  in  case  it  be  liable 
for  any. 

Art.  1G21. — Neither  is  the  testamentary  executor,  who  has  the 
seisin  of  the  effects  of  the  succession,  and  who  is  at  the  same  time  a 
legatee,  bound  to  demand  the  delivery  of  his  legacy :  he  can  retain  it 
in  his  possession,  subject  to  the  same  restitution. 

Art.  1622. — The  legatee  who,  of  his  own  authority,  takes  possession 
of  his  legacy,  is  bound  to  restore  the  fruits  and  pay  the  interest  of  all 
moneys  of  which  he  may  have  possessed  himself. 

5  A.  265. 

Art.  1623. — The  delivery  of  legacies  under  a  particular  title  must 
be  demanded  of  the  testamentary  executor,  who  has  the  seisin  of  the 
succession.  If  the  testamentary  executor  has  not  the  seisin,  or  if  his 
functions  have  expired,  the  legatees  must  apply  to  the  heirs. 

Art.  1624. — The  interest  or  proceeds  of  the  thing  bequeathed  shall 
accrue  to  the  benefit  of  the  legatee,  from  the  day  of  the  decease,  without 
his  having  brought  suit  for  the  same  : 

1 .  When  the  testator  has  expressly  declared  in  his  will  to  that 
effect ; 

2.  When  an  annuity  or  pension  has  been  bequeathed  by  way  of  main- 
tenance. 

Art.  1625. — The  costs  of  suing  for  delivei'y  shall  be  at  the  charge 
of  the  succession,  unless  the  testator  has  directed  otherwise,  and  pro- 
vided also  that  those  costs  shall  cause  no  deduction  of  the  legitime  re- 
served to  the  forced  heirs. 

Art.  1626. — The  heirs  of  the  testator,  or  the  debtors  of  a  legacy, 
shall  be  personally  bound  to  discharge  it,  each  in  proportion  to  the  part 
that  falls  to  him  in  the  succession. 

They  shall  be  bound  by  mortgage  for  the  whole,  to  the  amount  of 
the  value  of  the  immovable  property  of  the  succession  withheld  by 
them. 

8  A.  491. 

Art.  1627. — Particular  legacies  must  be  discharged  in  preference  to 
all  others,  even  though  they  exhaust  the  whole  succession,  or  all  that  re- 
mains after  the  payment  of  the  debts  and  the  contributions  for  the 
legitimate  portion,  in  case  there  are  forced  heirs. 

8L.  48;  11  L.  429;  17  L.  312. 

Art.  1628. — If  the  effects  do  not  suffice  to  discharge  the  particular 
legacies,  the  legacies  of  a  certain  object' must  first  be  taken  out.  The 
surplus  of  the  effects  must  then  be  proportionally  divided  among  the 
legatees  of  sums  of  money,  unless  the  testator  has  expressly  declared 
that  sucb  a  legacy  is  given  as  a  recompense  for  services. 

11  L.  429. 

Art.  1629. — The  legacy  bequeathed  shall  be  delivered  with  every 
thing  that  appertains  to  it,  in  the  condition  in  which  it  was  on  the  day 
p£  the  donor's  decease. 

2  N.  S.  44C. 


223  OF  DONATIONS  AND  TESTAMENTS.  223 

AuT.  1630. — When  a  person  who  has  bequeathed  the  property  of  an 
"mmovable,  has  afterwards  augmented  it  by  new  purchases,  the  property 
30  purchased,  though  it  be  contiguous,  shall  not,  without  a  new  disposi- 
tion, be  considered  as  making  part  of  the  legacy. 

It  is  otherwise  as  to  improvements  or  new  buildings  raised  on  the 
ground  bequeathed,  or  an  inclosure  of  which  the  testator  has  enlarged 
the  area. 

Art.  1631. — If  prior  to  the  testament  or  subsequently,  the  thing 
has  been  mortgaged  by  the  testator  for  his  own  debt  or  for  tliat  of  an 
other,  or  if  it  be  burdened  with  an  usufruct,  he  who  is  to  pay  the  legacy 
is  not  bound  to  discharge  the  thing  bequeathed  of  the  encumbrance,  un- 
less he  be  required  to  do  it  by  an  express  disposition  of  the  testator. 

8  A.  175. 

Art.  1632. — When  the  testator  has  bequeathed  a  thing  belonging  to 
another  person,  the  legacy  shall  be  null,  whether  the  testator  knew  or 
knew  not  that  the  thing  did  not  belong  to  him. 

Art.  1633. — When  the  legacy  is  of  an  indeterminate  thing,  the  heir 
is  not  obliged  to  give  it  of  the  best  quality,  nor  can  he  offer  it  of  the 
worst. 

Art.  1634. — A  legacy  made  to  a  creditor  shall  not  be  deemed  to  be 
in  compensation  of  the  debt,  nor  a  legacy  made  to  a  servant  in  compen- 
sation of  his  wages. 

Art.  1635. — The  legatee  by  a  particular  title  shall  not  be  liable  to 
the  debts  of  the  succession,  except  the  reduction  of  the  legacies  as  is 
before  provided,  and  except  the  action  of  mortgage  of  the  creditors. 

6  M.  70T. 

Art.  1636. — The  legacy  of  a  certain  object  is  extinguished  by  the 
loss  of  the  object ;  but  if  the  object  is  only  destroyed  in  part,  as  if  a 
house  bequeathed  has  been  destroyed  by  fire,  the  legacy  subsists  for 
what  remains,  that  is,  for  the  land  on  which  it  was  situated. 


Section  V. — Of  the   Opening  and  the  Proof  of    Testaments^  and  of 
Testamentary  Executors. 

Art.  1637. — No  testament  can  have  effect  unless  it  has  been  pre- 
sented to  the  judge  of  the  parish  in  which  the  testator  died,  if  he  died 
within  the  State,  or  in  which  his  principal  estates  lie,  if  he  died  out  of 
the  State  ;  the  judge  shall  order  the  execution  of  the  testament  after  its 
being  opened  and  proved,  in  the  cases  prescribed  by  law. 

7L.  37;  10  L.  350;  12  L.  357;  3N.  S.  473;  16L.  80;  6  A.  104. 

Art.  1638. — The  execution  of  a  testament  shall  not  be  ordered  un- 
til the  decease  of  the  testator  has  been  sufficiently  proved  to  the  judge 
to  whom  the  testament  is  presented. 

Art.  1639. — When  the  decease  of  the  testator  has  been  sufficiently 
proved  to  the  judge,  to  whom  the  testament  is  presented,  he  shall 
immediately  proceed  to  open  it,  if  it  be  scaled,  and  to  the  proof  of  it  in 
presence  of  the  notary  and  tlic  witnesses  who  were  present  at  the  mak 
ing  of  it,  and  who  are  on  the  spot,  or  duly  called. 

Art.  1640. — Nuncupative  testaments,  received  by  public  acts,  do 


224  OF  DONATIONS  AND  TESTAMENfS. 

not  require  to  be  proved,  that  their  execution  may  be  ordered ,  ihey  arc 
full  proof  of  themselves,  unless  they  are  alleged  to  be  forged. 

5L.  100;  10  L.  80;  17  L.  4. 

Art.  1641. — Nuncupative  testaments  under  private  signature  can- 
not be  executed,  until  they  have  been  proved  by  the  declaration  on  oath 
of  at  least  three  of  the  witnesses,  vrho  were  present  yrhen  they  were 
made. 

Art.  1642. — The  declaration  of  the  witnesses  required  for  such 
proof  must  state  in  substance,  not  only  that  they  recognize  the  testa- 
ment presented  to  them  as  being  the  same  that  was  written  in  their  pre-j 
sence  by  the  testator  himself  or  by  another  person  by  his  direction,  or 
which  the  testator  had  written  or  caused  to  be  written  out  of  their  pre- 
sence, and  which  he  declared  to  them  contained  his  last  will,  as  the  case 
may  be ;  but  also  that  they  recognize  their  signatures  and  that  of  the 
testator  at  the  foot  of  the  testament,  if  they  have  signed  it,  or  the  sig- 
nature of  him  who  signed  for  them  respectively,  in  case  of  their  not 
having  signed  for  want  of  knowing  how. 

Art.  1643. — The  execution  of  mystic  testaments  cannot  be  ordered 
until  they  have  been  in  like  manner  proved  by  the  declaration  on  oath, 
of  at  least  four  of  the  witnesses  who  were  present  at  the  act  of  super- 
scription. 

Art.  1644. — The  declaration  of  the  witnesses  required  for  the  proof 
of  mystic  testaments,  must  state  in  substance,  that  they  recognize  the 
sealed  packet  presented  to  them  to  be  the  same  that  the  testator  deliver- 
ed to  the  notary  in  their  presence,  declaring  to  him  that  it  contained  his 
testament ;  and  also  that  they  recognize  their  signatures  and  that  of 
the  notary  at  the  foot  of  the  superscription,  if  they  have  signed  it,  or 
the  signature  of  him  who  signed  for  them  respectively,  if,  not  knowing 
how  to  write,  they  did  not  themselves  sign  the  act  of  superscription. 

Art.  1645. — When  the  notary  who  has  passed  the  act  of  superscrip- 
tion is  one  of  the  witnesses  appearing,  his  declaration  on  oath,  with  that 
of  two  witnesses  only,  is  sufficient  proof  of  a  testament. 

Art.  1 646. — If  any  of  the  witnesses  who  were  present  at  the  making 
of  the  nuncupative  testament  under  private  signature,  or  at  the  act  of 
'  superscription  of  the  mystic  testament,  be  dead  or  absent,  so  that  it  be 
not  possible  to  procure  the  number  of  witnesses  prescribed  by  law  for 
proving  the  testament,  it  will  be  sufficient  to  prove  it  by  the  declarations 
of  the  witnesses  living,  who  are  in  the  State. 

Art.  1647. — If  none  of  the  persons  who  were  present  at  such  acts 
are  living  in  the  State,  but  all  are  absent  or  deceased,  it  will  be  sufficient 
for  the  proof  of  the  testament  if  two  credible  persons  make  a  declaration 
on  oath  that  they  recognise  the  signatures  of  the  different  persons  who 
have  signed  the  will  or  the  act  of  superscription. 

Art.  1648. — The  olographic  testament  shall  be  opened,  if  it  be 
sealed ;  and  it  must  be  acknowledged  and  proved  by  the  declaration  of 
two  credible  pei'sons,  who  must  attest  that  they  recognise  the  testament 
as  being  entirely  written,  dated  and  signecT  in  the  testator's  handwriting, 
as  having  often  seen  him  write  and  sign  during  his  lifetime. 

2  R.  427. 


225  OF  DONATIONS  AND  TESTAMENTS.  225 

Art.  1G49. — When  a  nuncupative  testament  lias  been  put  under  an 
envelope,  or  sealed,  merely  through  precaution  on  the  part  of  the  testa- 
tor, without  any  act  of  superscription  or  any  indication  of  the  names  of 
the  witnesses  who  have  signed  the  testament,  the  judge  shall  open  it  in 
presence  of  the  party  requiring  it,  and  of  two  witnesses  called  in  for  that 
purpose. 

2  R.  427. 

Art.  1G50. — When  the  judge  has  complied  with  all  the  formalitie? 
required  for  opening  and  proving  a  testament,  he  shall  order  its  execu- 
tion, and  he  shall  moreover  direct  that  such  testaments  as  have  not  beci? 
passed  by  public  act,  be  filed,  after  having  inscribed  on  them  bis  parapt 
nc  varietur,  at  the  top  and  bottom  of  each  page. 

2  K.  42T. 

Art.  1651. — The  execution  of  the  dispositions  contained  in  testa- 
ments, is  usually  confided  by  the  testator  to  one  or  more  testamentary 
executors. 

Art.  1652. — The  testator  may  give  his  testamentary  executor  the 
seisin  of  the  whole  of  his  succession,  or  only  of  a  certain  determinate 
portioi,  according  as  he  has  expressed  himself,  saving  the  restrictions 
contained  in  the  following  articles. 

But  this  seisin  cannot  continue  beyond  a  year  and  a  day  from  the 
decease  of  the  testator,  if  he  died  in  the  State,  or  from  the  day  on  which 
his  death  was  first  known,  if  he  died  out  of  the  State. 

If  the  testator  has  not  granted  the  seisin  to  the  testamentary  execu- 
tor, the  latter  cannot  require  it. 

1  L.  165 ;  6  L.  97  ;  10  L.  29  ;  Seo  5  A.  645 ;  15  L.  69. 

Art.  1653. — The  testator  may  express  bis  intention  to  grant  the 
seisin  of  his  estate  to  the  testamentary  executor,  either  in  express  terms, 
by  authorizing  him  to  take  possession  of  the  ivhole^  or  apart  of  the  estate 
of  his  succession  after  his  death.,  or  by  merely  appointing  him  testamen 
tary  executor  and  detainer  of  his  estate,  the  word  detainer  sufficiently 
announcing  that  the  executor  is  to  be  seized  of  the  property  of  the  suc- 
cession. 

But  if  the  executor  testamentary  be  merely  appointed  testamentary 
executor  without  any  other  power,  his  functions  are, confined  to  see  to 
the  execution  of  the  legacies  contained  in  the  will,  and  to  cause  the 
inventoiy  and  other  conservatory  acts  of  the  property  of  the  succession 
to  be  made. 

10  L.  29 ;  12  L.  73 ;  See  15  L.  69. 

Art.  1654. — When  of  the  testator's  heirs  some  are  absent  and  not 
represented  in  the  State,  the  judge  shall  appoint  for  them  a  counsel, 
whose  duty  it  shall  be  to  assist  for  them  at  the  inventory  of  the  cS'ects 
left  by  the  testator,  to  take  care  of  their  interests,  and  to  oppose  every 
thing  which  may  prejudice  the  same. 

7  N.  S.  615 ;  6  L.  653 ;  12  L.  73 ;  15  L.  66,  69 ;  7  R.  167. 

Art.  1655. — It  shall  also  be  the  duty  of  this  counsel  to  inform,  with 
all  possible  diligence,  those  whom  he  represents,  of  the  opening  of  the 
Buccession,  and  to  correspond  with  them ;  and  when  he  has  once  accept- 
ed this  charge,  he  cannot  divest  himself  of  it  until  the  heirs  have  sent 
their  power  of  attorney,  or  until  the  succession  is  liquidated. 

6  L.  653 ;  16  L.  66,  69. 

15 


226  OF  DONATIONS  AND  TESTAMENTS. 

Art.  1656. — He  who  cannot  obligate  himself  cannot  be  a  testamen 
tary  executor. 

AuT.  1657. — A  married  woman  cannot  accept  a  testamentary  execu- 
torship without  the  consent  of  her  husband. 

If  there  is  between  them  a  separation  of  property,  she  may  accept  it 
with  the  consent  of  her  husband,  or,  on  his  refusal,  she  may  be  author- 
ized by  the  court,  conformably  to  what  is  prescribed  by  the  title  of  hus- 
band and  wife. 

3  Pv.  8C8. 

Art.  1658. — A  minor  cannot  be  testamentary  executor,  even  with 
the  authorization  of  his  tutor  or  curator. 

Art.  1659. — The  testamentary  executor  shall  cause  the  seals  to  be 
affixed,  if  there  be  any  minor,  interdicted  or  absent  heirs;  he  shall  cause 
an  inventory  of  the  property  of  the  succession  to  be  made  in  the  different 
parishes  in  which  the  testator  has  left  property,  by  the  parish  judge  or 
by  any  notary  public  duly  authorized  to  that  effect  by  the  judge. 

12  L.  357 ;  See  15  L.  69. 

Art.  1660. — The  presumptive  heirs  present,  and  the  counsel  of  the 
absent  heirs,  must  be  notified  to  attend  at  the  taking  of  the  inventory. 

Art.  1661. — In  default  of  funds  sufficient  to  discharge  the  debts  and 
legacies  of  sums  of  money,  the  testamentary  executor  shall  cause  himself 
to  be  authorized  by  the  court  to  sell  the  movables  and  the  slaves  not 
employed  on  plantations,  and  if  they  are  insufficient,  the  immovables  to 
a  sufficient  amount  to  satisfy  those  debts  and  legacies. 

6  L.  167;  17  L.  812  ;  See  15  L.  69. 

^  Art.  1662. — Except  in  the  cases  provided  for  in  the  preceding 
article,  he  cannot  cause  the  immovables,  nor  the  slaves  employed  there- 
on, to  be  sold,  unless  he  is  authorized  by  the  will  to  do  so. 

Art.  1663. — The  testamentary  executor  shall  proceed  to  the  sale 
above  mentioned  and  to  the  payment  of  the  debts  of  the  succession,  in 
the  same  manner  as  is  prescribed  for  curators  of  vacant  successions. 

*  14  L.  Ill;  15L.  69;  17  L.  812. 

Art.  1664. — The  heirs  can  at  any  time  take  the  seisin  from  the  tes- 
tamentary executor,  on  offering  him  a  sum  sufficient  to  pay  the  movable 
legacies. 

See  amendment  to  art.  1005 :  7  L.  3S4 ;  17  L.  312 ;  13  L.  1 ;  2  E.  8S2 ;  8  E.  819 ;  10  E.  193 ;  8  A.  705 ; 

G  A.  64. 

Art.  1665. — The  testamentary  executor  is  bound,  even  after  the 
expiration  of  his  seisin,  to  see  the  testament  faithfully  executed. 

IL.  165;  See  IDE.  193. 

Art.  1 666. — He  must  render  an  account  of  his  administration  at  the 
expiration  of  the  year,  commencing  from  the  moment  in  which  he  had 
the  seisin. 

Stat,  loth  March,  1837,  j  96. — ^  G.  All  executors,  administrators, 
curators  of  vacant  successions  and  syndics,  shall  at  least  once  in  every 
twelve  months  render  to  the  probate  court  a  full,  fair  and  perfect  account 
of  their  administration,  and  on  failure  so  to  do,  shall  be  dismissed  from 
office,  and  pay  ten  per  cent,  per  annum  interest,  on  all  sums  for  which 
he  may  be  responsible  from  the  date  of  the  expiration  of  the  twelve 
months  aforesaid. 

1  N.  S.  243;  12  L.  613 ;  15  L.  69;  2  E.  851. 


227  OF  DONATIONS  AND  TESf  AMENTS,  227 

Art.  1667. — But  after  the  rendition  of  this  account,  the  judge  may 
continue  him  in  his  functions,  if  the  absent  lieirs  have  not  appeared  or 
have  not  claimed  their  rights,  on  obliging  him  to  give  security  for  the 
sum  or  effects  remaining  in  his  hands. 

6L.  167;  13  L.  1;  2  E.  851. 

Art.  1668. — If  the  testamentary  executor  is  not  continued  in  his 
functions,  he  must  pay  into  the  treasury  of  the  State  the  balance  in  ftivor 
of  the  succession,  in  ten  days  after  the  approval  and  final  settlement  of 
his  account,  if  he  lives  within  fifty  miles  of  the  treasurer's  oflace,  and  if 
he  reside  at  a  further  distance,  he  shall  be  allowed  one  day  for  every 
twenty  miles  in  addition  to  the  above  time. 

Art.  1669. — The  testamentary  executor,  even  after  the  expiration 
of  his  administration,  is  bound  to  continue  to  defend  the  suits  commenced 
by  or  against  him  on  account  of  the  succession,  until  the  heirs  appear 
or  cause  tliemselves  to  be  represented. 

See  auiondment  to  art.  1179  ;  7  N.  S.  615 ;  in  L.  435  ;  16  L.  344. 

Art.  1670. — The  testamentary  executor  is  not  bound  to  accept  the 
executorship,  nor  to  give  security,  when  he  does  accept  it. 

Art.  1671. — If  the  testator  has  omitted  to  name  a  testamentary 
executor,  or  if  the  one  named  refuses  to  accept,  the  judge  shall  appoint 
one  ex  officio. 

10  L.  530 ;  17  L.  4S6 ;  18  L.  392,  394 ;  2  R.  391 ;  3  A.  565 ;  C.  P.  924,  5,  7,  8. 

Art.  1672. — The  testamentary  executor,  thus  appointed  by  the  judge, 
and  called  the  dative  testamentar}-  executor,  is  bound  to  give  security  in 
the  same  manner  as  curators  of  vacant  successions. 

IS  L.  894. 

Art.  1673. — The  powers  of  the  testamentary  executor  do  not  go  to 
his  heirs. 

Art.  1674. — If  there  be  several  executors  who  have  accepted,  any 
one  of  them  may  act  for  them  all,  but  they  shall  all  be  jointly  and  sev- 
erally accountable  for  the  property  subject  to  the  executorship,  unless 
the  testator  has  divided  their  functions,  and  each  of  them  has  confined 
himself  to  that  which  to  him  was  allotted. 

HE.  109;  1  A.  214;  3  A.  574. 

Art.  1675. — The  expenses  incurred  by  the  executor  for  aflixing  the 
seals,  for  the  inventory,  for  the  accounts  and  the  other  charges  relative 
to  his  functions,  shall  be  defrayed  out  of  the  succession. 

3  A.  624. 

Art.  1676. — An  executor  who  has  had  the  seisin  of  all  the  estate 
of  the  succession,  whether  he  were  charged  to  sell  it  or  not,  shall  be  en- 
titled, for  his  trouble  and  care,  to  a  commission  of  two  and  a  half  per 
cent,  on  the  whole  amount  of  the  estimate  of  the  inventory,  making  a 
deduction  for  what  is  not  productive,  arfid  for  what  is  due  by  insolvent 
debtors. 

6  L.  324  ;  7  L.  C62 ;  10  L.  29 ;  12  L.  73  ;  1  K.  400 ;  2  R.  446 ;  8  A.  624 ;  6  A.  487 ;  See  5  N.  S.  229 ; 
3  L.  464 ;  4  A.  3S6 ;  Sec  1062, 11S7, 1188. 

Art.  1677. — If  the  executor  has  not  had  a  general  seisin,  his  com- 
mission shall  only  be  on  the  estimated  value  of  the  object  which  he  has 
had  in  his  possession,  and  on  the  sums  put  into  his  hands  for  the  pur- 
pose of  paying  the  legacies  and  other  charges  of  the  will. 

10  L.  29;  12  L.  COS. 


228  OF  DONirriONS  AND  TESTAMENTS. 

AuT.  1G78. — The  commission  shall  be  shared  among  the  executors. 
if  there  be  several,  and  if  their  functions  are  not  divided  by  the  testa 
tor. 

In  this  latter  case,  they  shall  be  entitled  to  a  commission  on  what 
has  fallen  to  the  administration  of  each  respectively. 

6  L.  324 ;  11  L.  224. 

Art.  1679. — Testamentary  executors,  to  whom  the  testator  has  be- 
queathed any  legacies  or  other  gifts  by  his  will,  shall  not  be  entitled  to 
any  commission,  unless  the  testator  has  formally  expressed  the  intention 
that  they  should  have  the  legacies  over  and  above  tlieir  commission. 

C  L.  824 ;  15  L.  224 ;  1  A.  129 ;  3  A.  705  ;  See  4  K.  S97. 

Akt.  1680. — In  no  case  shall  the  commission  allowed  to  the  testa- 
mentary executors  aifect  the  legitime  reserved  to  the  forced  heirs  of  the 
testators. 

Art.  1681. — Testaments  made  in  foreign  countries  and  other  States 
of  the  Union,  cannot  be  carried  into  effect  on  property  in  this  State, 
without  being  registered  in  the  court  within  the  jurisdiction  of  which 
the  property  is  situated,  and  the  execution  thereof  ordered  by  the  judge. 

6  N.  S.  621 ;  13  L.  221 ;  17  L.  4,  486 ;  IS  L.  570. 

Art.  1682. — This  order  of  execution  shall  be  granted  without  any 
other  form  than  that  of  registering  the  testament,  if  it  be  established 
that  the  testament  has  been  duly  proved  before  a  competent  judge  of  the 
place  where  it  was  received.  In  the  contrary  case,  the  testament  cannot 
be  carried  into  eflect,  without  its  being  first  proved  before  the  judge  of 
whom  the  execution  is  demanded. 

8  N.  S.  5S5 ;  13  L.  293 ;  17  L.  4 ;  2  E.  427 ;  3  E.  31 ;  6  E.  235. 


Section  VI. — Of  the  Revocation  of  Testaments  and  of  their  Caducity. 

Art.  1683. — Testaments  are  revocable  at  the  will  of  the  testator 
until  his  decease. 

The  testator  cannot  renounce  this  right  of  revocation,  nor  obligate 
himself  to  exercise  it  only  under  certain  words  and  restrictions,  and  if 
he  does  so,  such  declaration  shall  be  considered  as  not  written. 

2  A.  T8. 

Art.  1684. — The  revocation  of  testaments  by  the  act  of  the  testator 
is  express  or  tacit,  general  or  particular. 

It  is  express  when  the  testator  has  formally  declared  in  writing  that 
he  revokes  his  testament,  or  that  he  revokes  such  a  legacy  or  a  particu- 
lar disposition. 

It  is  tacit,  when  it  results  from  some  other  disposition  of  the  testa- 
tor, or  from  some  act  which  supposes  a  change  of  will. 

It  is  general,  when  all  the  dispositions  of  a  testament  are  revoked. 

It  is  particular,  when  it  falls  on  some  of  the  dispositions  only,  with- 
out touching  the  rest. 

3  E.  31 ;  2  A.  78. 

Art.  1685. — The  act  by  which  a  testamentary  disposition  is  revoked, 
must  be  made  in  one  of  the  forms  prescribed  for  testaments,  and  clothed 
with  the  same  formalities. 


229  OF  DONATIONS  AND  TESTAMENTS.  229 

Art.  1686. — Posterior  testaments,  which  do  not  in  an  express  man- 
ner, revoke  the  prior  ones,  annul  in  the  latter  only  such  of  the  disposi- 
tions there  contained  as  are  incompatible  with  the  new  ones,  or  contrary 
to  them,  or  entirely  different. 

11  L.  220 ;  12  L.  19 ;  3  E.  31 ;  1  A.  444;  2  A.  7S. 

Art.  1687. — A  revocation  made  in  a  posterior  testament  has  its  en- 
tire effect,  even  though  this  new  act  remains  without  execution,  either 
through  the  incapacity  of  the  person  instituted,  or  of  the  legatee,  or 
through  his  refusal  to  accept  it ;  provided  it  is  regular  as  to  its  form. 

4  L.  423. 

Art.  1688. — A  donation  i)itcr  vivos  or  a  sale  made  by  the  testator 
of  the  whole  or  a  part  of  the  thing  bequeathed  as  a  legacy,  amounts  to 
a  revocation  of  the  testamentary  disposition,  for  all  that  has  been  sold 
or  given,  even  though  the  sale  or  donation  be  null,  and  the  thing  have 
returned  into  the  possession  of  the  testator,  whether  by  the  effects  of 
that  nullity,  or  by  any  other  means. 

Art.  1689. — The  sale,  made  by  the  testator,  of  an  object  bequeathed, 
even  by  act  under  private  signature,  after  the  date  of  the  testament, 
produces  a  revocation  of  the  legacy,  if  the  act  be  entirely  written,  signed 
and  dated  with  his  hand. 

Art.  1690.— The  testamentary  disposition  becomes  without  effect, 
if  the  person  instituted  or  the  legatee  does  not  survive  the  testator. 

17  L.  4G. 

Art.  1691. — Every  testamentary  disposition  made  on  a  condition 
depending  on  an  uncertain  event,  so  that  in  the  intention  of  the  testator 
the  disposition  shall  take  place  only  iuasmuch  as  the  event  shall  or  shall 
not  happen,  is  without  effect,  if  the  instituted  heir  or  the  legatee  dies 
before  the  accomplishment  of  the  condition. 

Art.  1692. — A  condition  which,  in  the  intention  of  the  testator,  does 
but  suspend  the  execution  of  the  disposition,  does  not  hinder  the  insti- 
tuted heir  or  the  legatee  from  having  a  right  acquired  and  transmissible 
to  his  heirs. 

Art.  1693. — The  legacy  falls,  if  the  thing  bequeathed  has  totally 
perished  during  the  lifetime  of  tlie  testator. 

Art.  1694. — It  likewise  falls,  if  the  thing  has  perished  since  his 
death,  without  the  act  or  fault  of  tlie  heir,  although  the  latter  may  have 
delayed  to  deliver  it,  when  it  must  equally  have  perished  in  the  posses- 
sion of  the  legatee. 

Art.  1695. — In  case  of  an  alternative  legacy  of  two  things,  if  one 
of  them  perishes,  the  legacy  subsists  as  to  that  which  remains. 

Art.  1696. — The  testamentary  disposition  falls,  when  the  instituted 
heir  or  the  legatee  rejects  it,  or  is  incapable  of  receiving  it. 

IT  L.  46. 

Art.  1697. — Legatees  under  an  universal  title,  and  legatees  under  a 
particular  title,  benefit  by  the  failure  of  those  particular  legacies  which 
they  were  bound  to  discharge. 

10  R.  512;  12  R.  56. 

Art.  1698. — The  testament  falls  by  the  birth  of  legitimate  children 
of  the  testator,  posterior  to  its  date. 

Art.  1699. — The  right  of  accretion  relative  to  testamentary  dispo- 


230  OF  DONATIONS  AND  TESTAMENTS. 

sitions,  shall  no  longer  subsist,  except  in  the  cases  provided  for  in  the 
two  following  articles. 

Art.  1700. — Accretion  shall  take  place  for  the  benefit  of  the  lega- 
tees, in  case  of  the  legacy  being  made  to  several  conjointhj. 

The  legacy  shall  be  reputed  to  be  made  conjointly,  when  it  is  made 
by  one  and  the  same  disposition  without  the  testator's  having  assigned 
the  part  of  such  co-legatee  in  the  thing  bo(|ueathed. 

4  N.  S.  246 ;  8  L.  43 ;  10  E.  512 ;  G  A.  12. 

Art.  1701. — It  shall  also  be  reputed  to  be  made  conjointly,  when  a 
thing,  not  susceptible  of  being  divided  without  deterioration,  has  been 
given  by  the  same  act  to  several  persons,  even  separately. 

10  E.  512. 

Art.  1702. — Except  in  the  cases  prescribed  in  the  two  preceding 
articles,  every  portion  of  the  succession  remaining  undisposed  of,  either 
because  the  testator  has  not  bequeathed  it,  either  to  a  legatee  or  to  an 
instituted  heir,  or  because  the  heir  or  the  legatee  has  not  been  able,  or 
has  not  been  willing  to  accept  it,  shall  devolve  upon  the  legitimate  heirs. 

10  E.  512 ;  12  E.  56. 

Art.  1703. — The  same  causes  which,  according  to  the  foregoing  pro- 
visions of  the  present  title,  authorize  an  action  for  the  revocation  of  a 
donation  inter  vivos,  are  sufficient  to  ground  an  action  of  re^'oeation  of 
testamentary  dispositions ;  provided,  however,  that  no  charges  or  con- 
ditions can  be  imposed  by  the  testator  on  the  legitimate  portion  of  forced 
heirs,  nor  can  they  lose  their  inheritance  for  any  act  of  ingratitude  to 
the  testator,  prior  to  his  decease.  That  he  has  not  disinherited  them 
shall  be  sufficient  evidence  of  his  having  forgiven  the  offence. 

Art.  1704. — If  the  action  be  founded  on  a  grievous  injury  done  to 
the  memory  of  the  testator,  it  must  be  brought  within  a  year  from  the 
day  of  the  offence. 

Section  VII. —  General  Rtdcsfor  the  Interpretation  of  Legacies. 

Art.  1 705. — In  the  interpretation  of  acts  of  last  will,  the  intention 
of  the  testator  must  principally  be  endeavored  to  be  ascertained,  without 
departing,  however,  from  the  jDroper  signification  of  the  terms  of  the 
testament. 

T  L.  226  ;  8  L.  43,  4S0. 

Art.  1 706. — A  disposition  must  be  understood  in  the  sense  in  which 
it  can  have  effect,  rather  than  that  in  which  it  can  have  none. 

r  L.  226. 

Art.  1707. — In  ease  of  ambiguity  or  obscurity  in  the  description  of 
the  legatee,  as,  for  instance,  when  a  legacy  is  bequeathed  to  one  of  two 
individuals  bearing  the  same  name,  the  inquiry  shall  be  which  of  the 
two  was  upon  terms  of  the  most  intimate  intercourse  or  connection  with 
the  testator,  and  to  him  shall  the  legacy  be  decreed. 

Art.  1708. — When,  from  the  terms  made  use  of  by  the  testator,  his 
intention  cannot  be  ascertained,  recourse  must  be  had  to  all  circv^i- 
stances  which  ma}^  aid  in  the  discovery  of  his  intention. 

1  A.  444 ;  2  A.  580. 


231  OF  DONATIONS  AND  TESTAMENTS.  031 

Art.  1709. — A  mistake  in  the  name  of  an  object  bequeatliecl,  is  of 
no  moment,  if  it  can  be  ascertained  what  the  thing  was  which  the  testator 
intended  to  bequeathe. 

Art.  1710. — If  it  cannot  be  ascertained  whether  a  greater  or  less 
quantity  has  been  bequeathed,  it  must  be  decided  for  the  least. 

8  L.  489  ;  12  L.  73. 

Art.  1711. — A  general  legacy  does  not  embrace  those  things  inclu- 
ded under  the  genus,  which  have  been  acquired  after  the  death  of  the 
testator,  though  by  his  order. 

Art.  1712. — A  general  legacy  docs  not  embrace  the  things  included 
under  the  genus,  which  have  been  bequeathed  in  particular  to  other 
persons. 

Art.  1713. — A  disposition,  couched  in  terms  present  and  past,  does 
not  extend  to  that  wliich  comes  afterwards. 

For  example,  a  legacy  of  all  the  books  a  testator  possesses  does  not 
include  those  which  he  has  purchased  after  the  date  of  tlie  testament. 

8  L.  489. 

Art.  1714. — A  disposition,  couched  in  the  future  tense,  refei'S  to 
the  time  of  the  death  of  the  testator. 

Thus,  a  legacy  of  all  tlie  furniture  there  shall  be  in  the  house  of  the 
testator,  includes  that  which  he  has  purchased  since  the  date  of  the 
testament  as  well  as  the  rest. 

8  L.  4S9. 

Art.  1715. — A  disposition,  the  terms  of  which  express  no  time 
neither  past  nor  future,  refers  to  the  time  of  making  the  will. 

Thus,  when  the  testator  expresses  simply  that  he  bequeathes  his  plate 
to  such  a  one,  the  plate  that  he  possessed  at  the  date  of  the  will,  is  only 
included. 

8  L.  489. 

Art.  171G. — When  a  person  has  ordered  two  things,  which  are  con- 
tradictory, that  which  is  last  written,  is  presumed  to  be  the  Avill  of  the 
testator,  in  which  he  has  persevered,  and  a  derogation  to  what  has  before 
been  written  to  the  contrary. 


CHAPTER  VII. 

OF  PARTITIONS    MADK    BY  PARENTS    AND    OTHER  ASCENDANTS    AMONG    THEIR 

DESCENDANTS. 

Art.  1717. — Fathers  and  mothers  and  other  ascendants  may  make 
a  distribution  and  partition  of  their  property  among  their  children  and 
legitimate  descendants,  cither  by  designating  the  quantum  of  the  parts 
and  partitions  Avhicli  they  assign  to  each  of  them,  or  in  designating  the 
property  that  shall  compose  their  respective  lots. 

Art.  1718. — Those  partitions  may  be  made  by  act  inter  vivos  or  by 
testament. 

Art.  1719. — Those  made  by  an  act  inter  vivos  can  have  only  pre- 
sent property  for  tlioir  object,  and  are  subject  to  all  the  formalities  and 
jonditions  of  donations  inter  vivos. 


232  OF  DONATIONS  AND  TESTAMENTS. 

Art.  1720. — Those  made  by  testament,  must  be  made  in  the  forms 
prescribed  for  acts  of  that  kind,  and  are  subject  to  the  same  rules. 

Art.  1721. — If  the  partition,  whether  intxr  vivos  or  by  testament, 
has  not  comprised  all  the  property  that  the  ascendant  leaves  on  the  day 
of  his  decease,  the  property,  not  comprised  in  the  partition,  is  divided 
according  to  law. 

Art.  1722. — If  the  partition,  whether  ifiter  vivos  or  by  testament, 
be  not  made  amongst  all  the  children  living  at  the  time  of  the  decease 
and  the  descendants  of  those  predeceased,  the  partition  shall  be  null 
and  void  for  the  whole ;  the  child  or  descendant,  who  had  no  part  in  it, 
may  require  a  new  partition  in  legal  form. 

Art.  1723. — Partitions,  made  by  ascendant^,  may  be  avoided,  when 
the  advantage  secured  to  one  of  the  co-heirs  exceeds  the  disposable  por- 
tion. 

Art.  1724. — The  child  who  objects  to  the  partition  made  by  the  as- 
cendant, must  advance  the  expenses  of  having  the  property  estimated, 
and  must  ultimately  support  them  and  the  costs  of  suit,  if  his  claim  be 
not  founded. 

Art.  1725. — The  defendant  in  the  action  of  rescission  may  arrest  it 
by  offering  to  the  plaintiff  the  supplement  of  the  portion  to  which  he  has 
a  right. 

Art.  1726. — The  rescission  of  the  partition  does  not  carry  with  it 
the  nullity  of  a  donation  made  as  an  advantage. 


CHAPTER  VIII. 

OF  DONATIONS  MADE  BY  MARRIAGE  CONTRACT  TO  THE  HUSBAND  OR  WIFE, 
AND  TO  THE  CHILDREN  TO  BE  BORN  OF  THE  MARRIAGE. 

Art.  1727. — Every  donation  inter  vivos,  though  made  by  marriage 
contract  to  the  husband  and  wife  or  to  either  of  them,  is  subject  to  the 
general  rules  jDrescribed  for  the  donations  made  under  that  title. 

It  cannot  take  effect  for  the  benefit  of  children  not  yet  born. 

16  L.  2T1. 

Art.  1728. — Fathers  and  mothers,  the  other  ascendants,  the  collate- 
ral relations  of  either  of  the  parties  to  the  marriage,  and  even  strangers, 
may  give  the  whole  or  a  part  of  the  property  they  shall  leave  on  the  day 
of  their  decease,  both  for  the  benefit  of  the  parties,  and  for  that  of  the 
children  to  be  born  of  their  marriage,  in  case  the  donor  survive  the 
donee  • 

Such  a  donation,  though  made  for  the  benefit  of  the  parties  to  the 
marriage,  or  for  one  of  them,  is  always,  in  case  of  the  survivorship  of  the 
donor,  presumed  to  be  made  for  the  benefit  of  the  children  or  descend- 
ants to  proceed  from  that  marriage. 

Art.  1729. — A  donation,  in  the  form  specified  in  the  preceding  ar- 
ticle, is  irrevocable  only  in  this  sense,  that  the  donor  can  no  longer  dis- 
pose of  the  objects  comprised  in  the  donation,  on  a  gratuitous  title,  unless 
it  be  for  moderate  sums,  by  way  of  recompense  or  otherwise. 

The  donor  retains  till  death  the  full  liberty  of  selling  and  mortgaging, 
unless  he  has  formally  barred  himself  of  it  in  the  whole  or  in  part. 


233  OF  DONATIONS  AND  TESTAMENTS.  233 

Art.  1730. — A  donation  in  favor  of  marriage  may  be  made  cumula- 
tively of  the  ijroperty  present  and  future,  provided  that  to  tlie  act  be 
annexed  a  statement  of  the  debts  and  charges  of  the  donor,  existing  on 
the  day  of  the  donation,  in  which  case  the  donee,  on  the  decease  of  the 
donor,  may  accept  merely  the  present  property,  renouncing  the  surplus 
of  the  property  of  the  donor. 

19  L.  52S. 

Art.  1731. — If  the  statement,  mentioned  in  the  preceding  article, 
has  not  been  annexed  to  the  act  containing  a  donation  of  present  and 
future  property,  the  donee  shall  be  obliged  to  accept  or  reject  that  do- 
nation wholly ;  and  in  case  of  acceptance,  he  shall  claim  only  the  pi-o- 
perty  existing  on  the  day  of  the  donor's  decease,  and  he  shall  be  liable 
to  the  payment  of  all  the  charges  and  debts  of  the  succession. 

Art.  1 732. — Donations  made  by  marriage  contract  cannot  be  im- 
peached or  declared  void  on  pretence  of  a  want  of  acceptance. 

Art.  1733. — p]vcry  donation  made  in  favor  of  marriage,  falls,  if  the 
marriage  docs  not  take  place. 

4  A.  ,337. 

Art.  1734. — Donations  made  to  the  husband  or  the  wife,  on  the  terms 
of  articles  1728  and  1730,  fiill,  if  the  donor  survive  the  donee  and  his  or 
her  posterity. 

Art.  1735. — All  donations  made  to  [quarried  cou^ilc  by  tlieir  mar- 
riage contract,  are,  at  the  time  of  the  oplettig  of  the  succession  of  the 
donor,  reducible  to  the  portion  that  the  law  permitted  him  to  dispose  of 

8  M.  TOT;  6  N.  S.  19G;  Sec  7  11.  429. 


CHAPTER  IX. 

OF    DONATIONS    BETWEEN    MARRIED    PERSONS,    EITHER    BY    MARRIAGE    CON- 
TRACT   OR    DU*IING    THE    MARRIAGE. 

Art.  1736 — Married  persons  can,  by  marriage  contract,  make  to 
each  other  reciprocally,  or  the  one  to  the  other,  what  donations  they 
think  proper,  under  the  modifications  hereafter  expressed. 

1  N.  S.  4C5 ;  19  L.  52S. , 

Art.  1737. — Every  donation  'i?itcr  vivos,  of  present  property,  made 
between  married  persons  by  marriage  contract,  shall  not  be  deemed  to 
be  done  on  the  condition  of  the  survivorship  of  the  donee,  if  that  condi- 
tion be  not  formally  expressed,  and  it  is  subject  to  all  the  rules  above 
prescribed  for  those  kinds  of  donations. 

Ifl  L.  271 ;  19  L.  528. 

Art.  1738. — A  donation  of  property  in  future,  or  of  property  present 
and  in  future,  made  between  married  pea'sons  by  marriage  contract, 
whether  simple  or  reciprocal,  shall  be  subject  to  the  rules  established  by 
the  preceding  chapter,  Avith  regard  to  similar  donations  made  to  them 
by  a  third  person,  except  that  it  shall  not  be  transmissive  to  tlie  chil- 
dren, the  issue  of  the  marriage,  in  case  of  the  death  of  the  donee  before 
the  domr. 

19  L.  52S. 

Art   1739. — One  of  the  married  couple  may,  either  by  marriage 


234  OF  DONATIONS  AND  TESTAMENTS. 

contract  or  during  the  marriage,  in  case  of  his  or  her  icai^mjr  "ac  rhutiien 
nor  legitimate  descendants,  give  to  the  other  in  full  piopcrty^  all  that 
he  or  she  might  give  to  a  stranger. 

And  in  case  the  donor  leaves  children  or  legitimate  descendants,  he 
can  give  to  the  other  either  a  tenth  part  in  full  property,  or  the  usufruct 
only  of  one-fifth  of  all  his  property. 

Stat.  21  March,  1850,  p.  228. — Article  one  thousand  seven  hundred 
and  thirty-nine  of  the  Civil  Code,  which  reads  thus :  "  One  of  the  mar- 
riage couple  may  either  by  marriage  contract,  or  during  the  marriage, 
in  case  of  his  or  her  leaving  no  children  nor  legitimate  descendants, 
give  to  the  other  in  full  property,  all  that  he  or  she  might  give  to  a 
stranger. 

"  And  in  case  the  donor  leaves  children  or  legitimate  descendants,  he 
can  give  to  the  other  either  a  tenth  part  in  full  property,  or  the  usufruct 
only  of  one-fifth  of  all  his  property,"  be  and  the  same  is  hereby  altered 
and  amended  so  as  to  read  as  follows :  "  Either  of  the  married  couple 
may  either  by  marriage  contract,  or  during  the  marriage  give  to  the 
other  in  full  property,  all  that  he  or  she  might  give  to  a  stranger." 

1  N.  S.  465 ;  6  L.  231 ;  15  L.  563 ;  19  L.  52S ;  1  A.  142 ;  2  A.  30. 

Art.  1740. — The  husband  or  wife,  if  a  minor  emancipated,  can,  by 
marriage  contract,  give  t©  each  other,  either  by  simple  or  by  reciprocal 
donation  whatever  can  be  given  by  one  of  the  parties  who  has  attained 
the  age  of  majority. 

Art.  1741. — A  minor,  not  being  emancipated,  can  give  only  with 
the  consent  of  those  relations  whose  consent  is  requisite  for  the  validity 
of  the  marriage,  and  with  that  consent  he  or  she  can  give  all  that  the 
law  permits  a  married  person  of  full  age  to  give  to  his  or  her  consort. 

If  the  relations,  whose  consent  is  necessary,  be  dead,  the  minor  not 
emancipated  cannot  give  without  the  authorization  of  a  court  of  justice. 

Art.  1742. — All  donations  made  between  married  persons,  during 
marriage,  though  termed  inter  vivos,  slAill  always  be  revocable. 

The  revocation  may  be  made  by  the  wife,  without  her  being  autho- 
rized to  that  eifect  by  her  husband  or  by  a  court  of  justice. 

Art.  1743. — Those  donations  shall  not  be  revoked  by  the  birth  of 
children,  provided  they  do  not  exceed  the  quantum,  which  married  per- 
sons are  permitted  to  dispose  of  to  each  other,  to  the  prejudice  of  their 
children,  or  legitimate  descendants,  as  is  above  provided. 

Art.  1744. — Married  persons  cannot,  during  marriage,  make  to  each 
other,  by  an  act,  either  inter  vivos  or  mortis  causa,  any  mutual  or  reci- 
procal donation  by  one  and  the  same  act. 

10  M.  188. 

Art.  1745. — A  man  or  woman  who  contracts  a  second  or  subsequent 
marriage  having  children  by  a  former  one,  can  give  to  his  wife,  or  slae  to 
her  husband,  only  the  least  child's  portion,  and  that  only  as  an  usufruct ; 
and  in  no  case  shall  the  portion,  of  which  the  donee  is  to  have  the  usu- 
fruct, exceed  the  fifth  part  of  the  donor's  estate. 

0.  C.  p.  258;  Arts.  226,  22"  ;  2  A.  30;  19  L.  52S ;  See  7N.  S.  065. 

Art.  174G. — If  a  person  who  marries  a  second  time  has  children  of 
his  or  her  preceding  marriage,  he  or  she  cannot,  in  any  manner,  dispose  of 
the  property  given  or  bequeathed  to  him  or  her  by  the  deceased  spouse, 


235  OF  OBLIGATIONS.  235 

or  whicli  came  to  liim  or  her  from  a  brother  or  sister  of  any  of  the  chil- 
dren which  remain. 

This  property,  by  the  second  marriage,  becomes  the  property  of  the 
chiklren  of  the  preceding  marriage,  and  the  spouse,  who  marries  again, 
only  has  the  usufruct  of  it. 

6N.  S.  81;  15  L.  106;  1  A.  142. 

Art.  1747. — Husbands  and  wives  cannot  give  to  each  other,  indi- 
rectly, beyond  what  is  permitted  by  the  foregoing  dispositions. 

AH  donations  disguised,  or  made  to  persons  interposed,  shall  be  null 
and  void. 

6  A.  GT:? ;  1  L.  179. 

Art.  1 748. — All  donations  made  by  one  of  the  married  parties  to 
the  children  or  to  any  one  of  the  children  of  the  other  party  by  a  former 
marriage,  and  such  as  are  made  by  the  donor  to  relations  to  whom  the 
other  party  is  presumptive  heir  on  the  day  of  the  donation,  although  the 
latter  m^y  not  survive  the  relation  who  is  the  donee,  shall  be  deemod 
made  to  persons  interposed. 


TITLE  III. 

OF    OBLIGATIONS. 
CHAPTER  I. 

OF    THE    NATURE    AND    DIVISION    OF    OBLIGATIONS. 

Art.  1749. — An  obligation  is,  in  its  general  and  most  extensive 
sense,  synonymous  with  duty. 

Art.  1750. — Obligations  are  of  three  kinds  :  imperfect  obligations, 
natural  obligations,  and  civil  or  perfect  obligations. 

1.  If  the  duty  created  by  the  obligation  operates  only  on  the  moral 
sense,  without  being  enforced  by  any  positive  law,  it  is  called  imperfect 
obligation,  and  creates  no  right  of  action,  nor  has  it  any  legal  operation. 
The  duty  of  exercising  gratitude,  eliarity,  and  tlie  other  merely  moral 
duties,  is  an  example  of  this  kind  of  obligation. 

2.  A  natural  obligation  is  one  which  cannot  be  enforced  by  action, 
but  which  is  binding  on  the  party  who  makes  it,  in  conscience  and  ac- 
cording to  natural  justice. 

3.  A  civil  obligation  is  a  legal  tie,  whicli  gives  the  party  with  whom 
it  is  contracted,  the  right  of  enforcing  its  performance  by  law. 

Art.  1751. — Natural  obligations  are  of  four  kinds: 

1.  Such  obligations  as  the  law  has  rendered  invalid  for  the  want  of 
certain  forms  or  for  some  reason  oC  general  policy,  but  which  are  not  in 
themselves  immoral  or  unjust ; 

2.  Such  as  are  made  by  persons  having  IJie  discretion  necessary  to 


236  OF  CONVENTIONAL  OBLTGATIONS.  , 

enable  them  to  contract,  but  avIio  are  yet  rendered  incapable  of  doing 
so  by  some  provision  of  law ; 

3.  Wlien  tlie  action  is  bai'red  by  prescription,  a  natm-al  obligation 
still  subsists,  although  the  civil  obligation  is  extinguished ; 

4.  There  is  also  a  natural  obligation  on  those  who  inherit  an  estate, 
either  under  a  will  or  by  legal  inheritance,  to  execute  the  donations  or 
other  dispositions  which  the  former  owner  had  made,  but  which  are  de- 
fective for  want  of  form  only. 

2  L.  42S ;  2  A.  GC7. 

Art.  1752. — Although  natural  obligations  cannot  be  enforced  by 
action,  they  have  the  following  effect : 

1 .  No  suit  will  lie  to  recover  what  has  been  paid,  or  given  in  com- 
pliance with  a  natural  obligation  ; 

2.  A  natural  obligation  is  a  sufficient  consideration  for  a  new  con- 
tract. 

Art.  1753. — Civil  obligations  in  relation  to  their  origin,  are  of  two 
kinds  : 

1.  Such  as  are  created  by  the  force  of  the  law ; 

2  L.  42S ;  14  L.  34 ;  15  L.  3TS ;  19  L.  154, 1S5 ;  4  R.  495 ;  7  R.  5'29 ;  12  R.  273 ;  1  A.  2G5. 

2.  Such  as  arise  from  the  consent  of  the  parties  who  are  bound  by 
them,  which  are  called  contracts  or  conventional  obligations ; 

3  A.  101,  501 ;  4  A.  401 ;  5  A.  669 ;  Soo  3  A.  492  ;  7  R.  522 ;  9  R.  324 ;  4  A.  550. 

Each  of  these  divisions  will  form  the  subject  of  a  separate  title." 


TITLE  IV. 

OF  CONVENTIONAL  OBLIGATIONS. 
CHAPTER  I. 

GENERAL    PROVISIONS. 

Art.  1754. — A  contract  is  an  agreement,  by  which  one  person  obli- 
gates himself  to  another,  to  give,  to  do,  or  permit,  or  not  to  do  some- 
thing expressed  or  implied  by  such  agreement.        ^ 

6  L.  415. 

Art.  1755. — A  contract  must  not  be  confounded  with  the  instru- 
ment in  writing  by  which  it  is  witnessed.  The  contract  may  subsist, 
although  the  written  act  may,  for  some  defect,  be  declared  void ;  and 
the  written  act  may  be  good  and  authentic,  although  the  contract  it  wit- 
nesses be  illegal.  The  contract  itself  is  only  void  for  some  cause  or 
defect  determined  by  law. 

1  N.  S.  420 ;  4  L.  77. 

Art.  175G. — In  any  contract,  for  the  breach  of  which  damages  could 
be  recovered,  or  which  could  be  specifically  enforced  between  the  origi- 
nal parties,  the  obligation  is  incurred,  and  the  right  is  vested  in  their 


237  OF  CONVENTIONAL  OBLIGATIONS.  2o7 

repres(;ntatlves,  although  they  arc  not  specially  named,  unless  it  results 
from  the  nature  of  the  agreement. 

Art.  1757. — All  things  that  are  not  forbidden  by  law  may  legally  be- 
come the  subject  of,  or  the  motive  for,  contracts ;  but  different  agree- 
ments are  governed  by  different  rules  adapted  to  the  nature  of  each 
contract,  to  distinguish  whicli  it  is  necessary  in  cvei'y  contract  to  consi- 
der : 

1.  That  -which  is  the  essence  of  the  contract,  for  the  want  whereof 
there  is  either  no  contract  at  all,  or  a  contract  of  another  description. 
Thus  a  price  is  essential  to  the  contract  of  sale ;  if  there  be  none,  it  is 
cither  no  contract,  or  if  the  consideration  be  other  property,  it  is  an 
exchange ; 

2.  Things  which,  altliough  not  essential  to  the  contract,  yet  are  im- 
plied from  the  nature  of  such  agreement,  if  no  stipulation  be  made  re- 
specting them,  but  which  the  parties  may  expressly  modify  or  renounce, 
without  destroying  the  contract  or  changing  its  description ;  of  this  na- 
ture is  warranty,  which  is  implied  in  every  sale,  biit  which  may  be  mo- 
dified or  renounced,  without  changing  the  character  of  the  contract  or 
destroying  its  effect ; 

3.  Accidental  stipulations,  which  belong  neither  to  tlie  essence  nor 
the  nature  of  the  contract,  but  depend  solely  on  the  will  of  the  parties. 
The  term  given  for  the  payment  of  a  loan,  the  place  at  which  it  is  to  be 
paid,  and  the  nature  of  the  rent  payable  on  a  lease,  are  examples  of  ac- 
cidental stipiilations. 

What  ]jelongsto  the  essence  and  to  the  nature  of  each  parti:  ular  de- 
scription of  contract,  is  determined  by  the  law  defining  such  cu:itracts  ; 
accidental  stipulations  depend  on  the  will  of  the  parties,  reguhited  by 
the  general  rules  applying  to  all  contracts. 

V.  art  2255 ;  5  M.  422 ;  1  N.  S.  456 ;  2  R.  109  ;  4  L.  22 ;  Seo  1-3  L.  257. 

Art.  1758. — To  all  contracts  there  must  be  at  least  two  parties, 
one  who  does,  or  engages  to  do  or  not  to  do,  another  to  whom  the  en- 
gagement is  made.  If  this  latter  party  make  no  express  agreement  on 
his  part,  the  contract  is  called  unilateral,  even  in  cases  where  the  law 
attaches  certain  obligations  to  his  acceptance. 

It  is  called  a  reciprocal  contract,  when  the  parties  expressly  enter 
into  mutual  engagements. 

Seo  7  L.  233,  240. 

Art.  1759. — No  contract  is  complete  without  the  assent  of  both 
parties.  In  reciprocal  contracts  it  must  be  expressed.  In  some  uni- 
lateral contracts,  the  law  provides  that  under  certain  circumstances  it 
shall  be  presumed. 

1  L.  18S ;  18  L.  539. 

Art.  1760. — Contracts,  considered  in  relation  to  their  substance,  are 
cither  commutative,  or  independent,  principal  or  accessory. 

Art.  1761. — Commutative  contracts  are  those  in  which  what  is 
done,  given,  or  promised  by  one  party,  is  considered  an  equivalent  to, 
or  a  consideration  for  what  is  done,  given,  or  promised  by  the  other. 

Art.  1762. — Independent  contracts  are  those  in  which  tlic  mutual 
acts  or  promises  have  no  relation  to  each  other,  either  as  equivalents  or 
aa  coDsidcratioDs. 


238  OF  CONVENTIONAL  OBLIGATIONS 

Akt.  1 763  — A  contract,  containing  mutual  covenants,  shall  be  pre- 
sumed to  be  commutative,  unless  the  contrary  be  expressed. 

Art.  1764. — A  principal  contract  is  one  entered  into  by  both  parties, 
on  their  accounts,  or  in  tlie  several  qualities  they  assume.  An  accessory 
contract  is  made  for  assuring  the  performance  of  a  prior  contract,  either 
by  the  same  parties  or  by  others,  such  as  suretyship,  mortgage  and 
pledge. 

Art.  1765. — Contracts,  considered  in  relation  to  the  motive  for  ma 
king  them,  are  either  gratuitoiis  or  onerous. 

6  L.  231, 2U ;  See  1  A.  132. 

Art.  176G. — Ho  be  gratuitous,  the  object  of  a  contract  must  be  to 
benefit  the  person  with  whom  it  is  made,  without  any  profit  or  advantage, 
received  or  promised  as  a  consideration  for  it.  It  is  not,  however,  the 
less  gratuitous,  if  it  proceed  either  from  gratitude  for  a  benefit  before 
received,  or  from  the  hope  of  receiving  one  hereafter,  although  such  bene- 
fit be  of  a  pecuniary  nature. 

Art.  1 767. — Any  thing  given  or  promised  as  a  consideration  for  the 
engagement  or  gift,  any  service,  interest  or  condition,  imposed  on  what 
is  given  or  promised,  although  unequal  to  it  in  value,  makes  a  contract 
onerous  in  its  nature. 

Art.  1768. — Considered  in  relation  to  their  effects,  contracts  are 
either  certain  or  hazardous. 

Art.  1769. — A  contra'et  is  hazardous,  when  the  performance  of  that 
which  is  one  of  its  objects,  depends  on  an  uncertain  event. 

It  is  certain,  when  the  thing  to  be  done  is  supposed  to  depend  on  the 
will  of  the  party,  or  when  in  the  usual  course  of  events  it  must  happen 
in  the  manner  stipulated. 

Art.  1770. — Contracts  in  general,  under  whatever  denomination 
they  may  come,  and  whether  they  may  or  maj^  not  be  included  in  any  of 
the  above  divisions,  are  subject  to  certain  rules,  which  are  the  subject 
of  this  title. 

6  L.  231,  244. 

Art.  1771. — Certain  contracts  are  regulated  by  rules,  which  are 
established  in  the  parts  of  the  code  which  treat  of  those  contracts. 

1  A.  249. 


CHAPTER  II. 

OF  THE  REQUISITES  TO  THE  FORMATION  OF  A  VALID  AGREEMENT. 

Art.    1772. — Four  requisites  are  necessary  to  the  validity  of  an 
agreement : 

1.  Parties  legally  capable  of  contracting; 

2.  Their  consent  legally  given ; 

3.  A  certain  object,  which  forms  the  matter  of  agreement; 
,4.  A  lawful  purpose. 

Seel  A.  176;  See  2  K.  163. 


239  OF  CONVE^sTIOXAL  OBLIGATIONS.  239 

Section  I. — Of  the  Parties  to  a  Contract,  and  of  their  CapubiJity  to 

Contract. 

Art.  1773. — Those  only  are  parties  to  a  contract,  who  have  given 
their  assent  to  it,  either  expressly  or  by  implication. 

13  L.  264. 

Art.  1774. — The  cases,  in  which  assent  is  implied,  are  particularly 
determined  by  law. 

Art.  1775. — KW  persons  have  the  capability  to  contract,  except 
those  whose  incapacity  is  specially  declared  by  law.  These  are  persons 
of  insane  mind,  slaves,  those  who  are  interdicted,  minors,  married  wo- 
men. 

5  N.  S.  527, 651 ;  7  N.  S.  bil ;  15  L.  13 ;  5  E.  295 ;  11  R.  506  2  A.  418 ;  5  A.  1 ;  Sec  379,  1T7S,  1S67, 

2222,  2420. 

Art.  1776. — All  cases  of  incapacity  are  subject  to  the  following  mo- 
difications and  exceptions. 

Art.  1777. — Persons  interdicted  can,  in  no  cases  whatever,  make  a 
valid  contract  after  the  petition  has  been  presented  for  their  interdiction, 
until  it  be  legally  removed. 

Art.  1778. — Minors  emancipated  may  contract  in  the  cases  already 
provided  by  law,  and  when  not  emancipated,  their  contracts  are  valid, 
if  made  with  the  intervention  of  their  tutors  or  curators,  and  with  the 
assent  of  a  family  meeting,  in  the  cases  where  by  law  it  is  required. 

When  the  minor  has  no  tutor  or  curator,  or  they  neglect  to  supply 
him  with  necessaries  for  his  support  or  education,  a  contract  or  quasi  con- 
tract for  providing  him  with  what  is  necessary  for  those  purposes,  is 
valid. 

A  minor  is  also  capable  of  accepting  the  contract  of  mandate,  under 
the  restrictions  and  modifications  contained  in  the  title  on  that  subject. 

His  stipulations  in  a  marriage  contract,  if  made  with  the  assent  of 
those  whose  authority  is  in  sucli  case  required  by  law,  are  also  valid. 

The  obligation  arising  from  an  offence  or  quasi  offence,  is  also  bind- 
ing on  the  minor. 

In  all  other  cases,  the  minor  is  incapacitated  from  contracting,  but 
his  contracts  may  be  rendered  valid  by  ratification,  either  expressed  or 
implied,  in  tlie  manner  and  on  the  terms  stated  in  this  title  under  the 
head  of  nullity  or  rescission  of  agreements. 

5  N.  S.  651 ;  15  L.  18 ;  2  A.  367 ;  See  879, 1775,  1867 ;  See  1  N.  S.  537 ;  3  N.  S.  400 ;  8  N.  S.  196. 

Art.  1779. — The  incapacity  of  the  wife  is  removed  by  the  authori- 
zation of  the  husband,  or,  in  cases  provided  by  law,  by  that  of  the 
judge. 

3  K.  829  ;  See  10  L.  101 ;  11  L.  >')3S ;  1  E.  230 ;  11  E.  506. 

The  authorization  of  the  liu.sband  to  the  commercial  contracts  of  the 
wife  is  presumed  by  law,  if  he  permits  her  to  trade  in  her  own  name ; 
to  her  contracts  for  necessaries  for  herself  and  family,  where  he  docs  not 
himself  provide  them  ;  and  to  all  her  cither  contracts,  when  he  is  himself 
a  party  to  them. 

10  L.  163;  3R.  329;  6E.  292. 

The  unauthorized  contracts  made  by  married  women,  like  the  acts  of 
minors,  may  be  made  valid,  after  the  marriage  is  dissolved,  either  by 
express  or  implied  assent. 


240  OF  CONVENTIONAL  OBLIGATIONS. 

Art.  1780. — A  married  woman  may  act  as  mandatary,  and  her  acts 
will  bind  the  mandator  and  the  person  with  whom  she  contracts  in  her 
name ;  although  she  be  not  authorized  by  her  husband,  but  the  manda- 
tor has  no  action  against  her  on  the  contract. 

Art.  1781. — The  contract,  entered  into  by  a  person  of  insane  mind, 
is  void  as  to  him  for  the  want  of  that  assent,  which  none  but  persons,  in 
possession  of  their  mental  faculties,  can  give.  It  is  not  the  judgment 
of  interdiction,  therefore,  that  creates  the  incapacity,  it  is  evidence  only 
of  its  existence,  but  it  is  conclusive  evidence,  and  from  these  principlea 
result  the  following  rules  : 

1.  That,  after  the  interdiction,  no  other  evidence  than  the  interdic- 
tion itself  is  necessary  to  prove  the  incapacity  of  the  person,  and  to 
invalidate  any  contract  he  may  have  made  after  the  day  the  petition  for 
interdiction  was  presented,  and  tliat  no  evidence  to  show  that  the  act 
was  made  during  a  lucid  interval,  or  to  contradict  the  judgment  of  inter- 
diction, can  be  admitted ; 

2.  As  to  contracts,  made  prior  to  the  application  for  the  interdiction, 
they  can  only  be  invalidated  by  proving  the  incapacity  to  have  existed 
at  the  time  the  contracts  were  made  ;         v 

3.  But  in  order  to  prevent  imposition,  it  is  not  enough  to  make  the 
proof  mentioned  in  the  last  rule  ;  it  must  also,  in  that  case,  be  shown 
that  the  person  interdicted  was  known  by  those  who  generally  saw  and 
conversed  with  him,  to  be  in  a  state  of  mental  derangement,  or  that  the 
person,  who  contracted  with  him,  from  that  or  other  circumstances,  was 
acquainted  with  his  incapacity  ; 

4  L.  114. 

4.  That,  except  in  the  case  of  death  hereafter  provided  for,  no  suit 
can  be  brought,  nor  any  exception  made,  to  invalidate  a  contract  on 
account  of  insanity,  unless  judgment  of  interdiction  be  pronounced  before 
bringing  the  suit,  or  at  least  applied  for  before  making  the  exception  ; 

5.  That  if  the  party  die  within  thirty  days  after  making  the  act  or 
contract,  the  insanity  may  be  shown  by  evidence,  without  having  applied 
for  the  interdiction  ;  but  if  more  than  that  time  elapse,  the  insanity 
cannot  be  shown  to  invalidate  the  act  or  contract,  unless  the  interdiction 
shall  have  been  applied  for,  except  in  the  case  provided  for  in  the  follow- 
ing rule  ; 

6.  That  if  an  instrument  or  other  act  of  a  person  deceased  shall 
contain  in  itself  evidence  of  insanity  in  the  party,  then  it  shall  be 
declared  void,  although  more  than  thirty  days  have  elapsed  between  the 
time  of  making  the  act  and  the  death  of  the  party,  and  although  no 
petition  shall  have  been  presented  for  his  interdiction  ; 

6  A.  104. 

7.  In  the  case  mentioned  in  the  preceding  rule,  other  proofs  of 
insanity  may  be  offered  by  the  party,  who  alleges  the  incapacity,  or  may 
be  required  by  the  judge  ; 

8.  That,  where  insanity  is  alleged  to  avoid  a  donation  or  other  gra- 
tuitous contract,  it  is  not  necessary  to  show  that  the  incapacity  was 
generally  known ;  it  will  be  sufficient  to  show  that  it  existed,  and  if  the 
party  be  dead,  without  having  been  interdicted,  it  is  not  necessary  in 
this  case  to  show  that  the  interdiction  was  applied  for ; 


241  OF  CONVENTIONAL  OBLIGATIONS.  241 

9.  That  evidence  of  general  and  habitual  insanity  in  order  to  avoid 
a  contract,  may  be  rebutted  by  showing  that  the  contract  or  act  waa 
made  during  a  lucid  interval ;  but  where  general  insanity,  even  with 
some  intervals,  is  shown,  the  burden  of  showing  that  the  particular  act 
in  dispute  was  made  during  such  an  interval,  is  thrown  on  the  party, 
who  supports  the  validity  of  the  act  or  contract; 

4  L.  114. 

10.  That  insanity  may  be  alleged  and  proved  to  invalidate  a  testa- 
ment, although  no  interdiction  have  been  applied  for,  nor  in  that  case  is 
it  necessary  to  prove  that  the  insanity  was  notorious  ; 

6  A.  104. 

11.  The  allegation  in  a  testament  that  the  testator  was  of  sound 
mind,  cannot  prevent  pi'oof  of  the  contrary  being  given  in  evidence,  even 
by  the  witnesses  to  the  will ; 

12.  That,  when  these  rules  refer  to  the  time  of  presenting  the 
petition  for  interdiction,  as  a  period  which  is  to  determine  the  validity 
of  a  contract  or  other  act,  such  petition  is  meant  as  has  not  been  with- 
drawn or  dismissed ; 

13.  That,  while  the  judgment  of  interdiction  is  in  force,  it  is  conclu- 
sive evidence  of  incapacity  ;  but  that  it  may  be  annulled,  whenever  the 
insanity  ceases,  but  it  can  only  be  annulled  by  a  judgment. 

4  L.  114. 

Art.  1782. — A  temporary  derangement  of  intellect,  whether  arising 
from  disease,  accident  or  other  cause,  also  creates  an  incapacity  pending 
its  duration,  provided  the  situation  of  the  party  and  his  incapacity  was 
apparent. 

Art.  1783. — The  only  case,  in  which  slaves  can  contract  on  their 
account,  is  for  their  emancipation.  They  may  contract  for  their  masters, 
when  authorized  by  them. 

3  A.  136. 

Art.  1784. — Besides  the  general  incapacity,  which  persons  of  cer- 
tain descriptions  are  under,  there  are  others  applicable  only  to  certain 
contracts,  either  in  relation  to  the  parties,  such  as  a  husband  and  wife, 
tutor  and  ward,  w'hose  contracts  with  each  other  are  forbidden ;  or  in 
relation  to  the  subject  of  the  contract,  such  as  purchases,  by  the  admin- 
istrator of  any  part  of  the  estate  which  is  committed  to  his  charge,  and 
the  incapacity  of  the  wife,  even  with  the  assent  of  the  husband,  to  alien- 
ate her  dotal  property,  or  to  become  security  for  his  debts.  These  take 
place  only  in  the  cases  specially  provided  by  law,  under  different  titles 
of  this  code. 

See  Amendment  to  Art  1139 ;  9  L.  5S5  ;  14  L.  111.  122 ;  1  K.  220 ;  12  E.  82 ;  1  A.  129,  301 ;  3  A.  533 : 

6  A.  465 ;  9co  2412. 

Art.  1785. — The  persons  who  have  treated  with  a  minor,  the  person 
interdicted,  or  of  insane  mind,  or  with  a  married  woman,  cannot  plead 
the  nullity  of  the  agreement,  if  it  is  sought  to  be  enforced  by  the  party, 
when  the  disability  shall  cease,  or  by  those  who  legally  administer  the 
rights  of  such  person  during  the  disability.  Even  a  contract  made  with 
a  slave  may  bo  enforced  by  the  master,  if  he  chooses  to  affirm  it  for  hia 
benefit. 

6L.231;  10  L.  506;  19  L.  441. 
16 


242  OF  CONVENTIONAL  OBLIGATL  >NS. 

Art.  1 786. — If  the  contract  be  reciprocal,  it  must  not  be  enforced 
on  one  side  only;  and  if  the  minor,  or  other  incapacitated  person,  opposes 
his  incapacity  against  any  part  of  the  agreement,  the  whole  of  the  con- 
tract is  void. 

See  4  L.  463. 

Art.  1787. — If,  in  a  contract  with  an  incapacitated  person,  or  in  a 
contract  void  for  want  of  form,  entered  into  with  any  one  for  the  benefit 
of  such  incapacitated  person,  any  consideration  be  paid  or  given,  and 
the  contract  be  afterwards  invalidated  on  account  of  such  incapacity  or 
want  of  form,  the  consideration  so  paid  or  given  must  be  restored,  if  it 
was  applied  to  the  necessary  use  or  benefit  of  the  incapacitated  person. 

4  L.  305  ;  6  L.  215. 

Art.  1788. — A  person,  who,  being  ignorant  of  the  incapacit}^  of  one 
unable  to  contract,  shall  make  an  agreement  with  such  person,  may, 
immediately  after  he  has  discovered  the  incapacjity,  call  on  the  party,  if 
the  incapacity  has  ceased,  or  on  the  person  having  the  legal  administra- 
tion of  his  affairs,  if  it  have  not,  to  confirm  or  annul  the  contract ;  and 
if  it  be  a  contract  of  such  kind,  as  the  administrator  might  have  made, 
then  his  assent  shall  confirm  it,  or  his  dissent  shall  free  the  contracting 
party  from  the  obligation  on  his  part.  If  the  assent  of  a  family  meeting 
would  have  been  necessary  to  authorize  the  contract,  it  may  be  called, 
on  the  application  of  the  party,  and  their  decision  shall  havfe  the  same 
effect  in  confirming  or  invalidating  the  contract,  that  it  would  have  had 
on  its  formation. 

6L.  215;  2  A.  727;  4  A.  85. 

Art.  1789. — If  a  contract,  made  by  a  person  incapacitated  from 
contracting,  shall  be  confirmed  by  him  after  his  incapacity  shall  cease, 
the  rights  of  third  persons  acquired  before  such  confirmation  are  not 
impaired  thereby,  even  if  such  riglits  were  acquired  with  notice  of  the 
invalid  act. 

7  N.  S.  374 ;  11  E.  98 ;  12  E.  221. 

Art.  1790. — Those  who  may  be  interdicted  from  the  enjoyment  of 
their  civil  rights,  in  consequence  of  a  conviction  for  crime,  cannot  op- 
pose their  incapacity  against  the  performance  of  any  contract  they  may 
have  made,  unless  it  be  against  some  person  having  power  over  them 
during  their  confinement,  nor  can  any  person  with  whom  they  contract, 
plead  such  incapacity. 


Section  II. — Of  the  Coiuent  necessary  to  give  Validity  to  a  Contract 

§  1.   Of  the  Nature  of  the  Assent,  and  how  it  is  to  he  shotcn. 

Art.  1791. — When  the  parties  have  the  legal  capacity  to  form  a 
contract,  the  next  requisite  to  its  validity  is  their  consent.  This  being 
a  mere  operation  of  the  mind,  can  have  no  effect,  unless  it  be  evinced 
in  some  manner  that  shall  cause  it  to  be  understood  by  the  other  parties 
to  the  contract.  To  prevent  error  in  this  essential  point,  the  law  esta- 
blishes, by  certain  rules  adapted  to  the  nature  of  the  contract,  what  cir- 
cumstances shall  be  evidence  of  such  assent,  and  how  those  circum- 


243  OF  CONVENTIONAL  OBLIGATIONS.  '243 

stances  shall  be  proved  :  these  come  within  the  purview  of  the  law  of 
evidence. 

1  N.  S.  420;  11  L.  99;  See  7  L.  283. 

Art.  1792. — As  there  must  be  two  parties  at  least  to  every  contract, 
so  there  must  be  something  proposed  by  one,  and  accepted  and  agreed 
to  by  another,  to  form  the  matter  of  such  contract,  the  will  of  both  par- 
ties must  unite  on  the  same  point. 

Art.  1793. — It  is  a  presumption  of  law  that,  in  every  contract,  each 
party  has  agreed  to  confer  on  the  other  the  right  of  judicially  enforcing 
the  performance  of  the  agreement,  unless  the  contrary  be  expressed,  or 
may  be  implied. 

Art.  1794. — -The  contract  consisting  of  a  proposition  and  the  con- 
sent to  it,  the  agreement  is  incomplete,  until  the  acceptance  of  the  per- 
son to  whom  it  is  proposed.  If  he  who  proposes,  should  before  that 
assent  is  given,  change  his  intention  on  the  subject,  the  concurrence  of 
the  two  wills  is  wanting,  and  there  is  no  contract. 

1  L.  ISS ;  5  A.  124. 

Art.  1795. — The  party  proposing  shall  be  presumed  to  continue  in 
the  intention,  which  his  proposal  expressed,  if,  on  receiving  the  unquali- 
fied assent  of  him  to  whom  the  proposition  is  made,  he  do  not  signify 
the  change  of  his  intention. 

2  L.  504. 

Art.  1796. — He  is  bound  by  his  proposition,  and  the  signification 
of  his  dissent  will  be  of  no  avail,  if  the  proposition  be  made  in  terms 
which  evince  a  design  to  give  the  other  party  the  right  of  concluding 
the  contract  by  his  assent;  and  if  that  assent  be  given  within  such  time 
as  the  situation  of  the  parties  and  the  natm*c  of  the  contract  shall 
prove  that  it  was  the  intention  of  the  proposer  to  allow. 

2  L.  504  ;  3  A.  523  ;  5  A.  124 

Art.  1797. — But  when  one  party  proposes,  and  the  other  assents, 
then  the  obligation  is  complete,  and  by  virtue  of  the  right  each  has  im- 
pliedly given  to  the  other,  either  of  them  may  call  for  the  aid  of  the 
law  to  enforce  it. 

Art.  1798. — The  acceptance  needs  not  be  made  by  the  same  act,  or 
in  point  of  time,  immediately  after  the  proposition,  if  made  at  any  time 
before  the  person  who  oflfers  or  promises  has  changed  liis  mind,  or  may 
reasonably  be  presumed  to  have  done  so,  it  is  sufficient. 

8  A.  523. 

Art.  1799. — The  acceptance  to  form  a  contract  must  be  in  all 
things  conformable  to  the  offer  ;  any  condition  or  limitation  contained  in 
the  acceptance  of  that  which  formed  the  matter  of  the  offer,  gives  him 
•who  makes  the  offer,  the  right  to  withdraw  it. 

1  L.  ISS,  190 ;  6  K.  97. 

Art.  1800. — This  takes  place  even  when  more  is  promised  than  was 
demanded,  or  wlien  less  is  offered  than  was  required ;  for  example,  if  a 
request  is  made  to  borrow  fifty  dollars,  and  the  party  answers  that  he 
will  lend  one  hundred  dollars ;  or,  if  the  request  be  to  borrow  one  hun- 
dred dollars,  and  the  answer  that  fifty  will  be  lent,  there  is  no  obliga- 
tion in  either  case  without  a  further  assent  of  the  borrower  to  take  the 
one  hundred,  in  the  first  case,  and  the  fifty  in  the  other;  for  the  propo- 


244  OF  CONVENTIONAL  OBLIGATIONS. 

sal  to  borrow  fift}-  docs  not  necessarily  imply  an  assent  to  bon  jw  one 
hundred,  nor  does  the  proposal  to  lend  one  hundred  necessarily  imply  a 
desire  to  lend  only  fifty.  The  modification  or  change  of  the  proposition 
is,  in  all  respects,  considered  as  a  new  ofi"cr,  and  the  party  making  it  ia 
bound  by  the  acceptance  in  the  same  manner  as  if  the  original  proposi- 
tion had  been  made  by  him. 

Art.  1801. — "When,  however,  from  the  circum.stanccs  of  the  case 
the  oflFer  necessarily  implies  an  assent  to  the  modification  of  the  accept- 
ance, then  the  obligation  is  complete,  altliough  there  be  a  diff'erence  in 
terms  between  the  one  and  the  other.  If,  for  example,  one  offers  to  sell 
a  certain  article  for  one  hundred  dollars,  and  the  other,  not  having  yet 
received  the  offer,  should  on  his  part  propose  to  give  two  hundred  dollars, 
the  proposal  to  give  the  greater  sum  necessarily  implies  an  assent  to  take 
it  for  a  less,  and  the  contract  is  complete  at  the  luwest  sum. 

Art.  1802. — But  a  consent  to  give  any  thing  else,  although  of  a 
greater  value  than  that  contained  in  the  offer,  or  to  give  the  same  or  a 
larger  sum  at  a  different  term  of  payment,  docs  not  imply  an  assent  to 
the  offer,  and  there  is  in  that  case  no  obligation. 

Art.  1803. — The  obligation  of  a  contract  not  being  complete,  until 
the  acceptance,  or  in  cases  where  it  is  implied  by  law,  until  the  circum- 
stances which  raise  such  implication  are  known  to  the  party  proposing ; 
he  may  therefore  revoke  his  offer  or  proposition  before  such  acceptance, 
but  not  without  allowing  such  reasonable  time  as  from  the  terms  of  his 
offer  he  has  given  or  from  the  circumstances  of  the  case  he  may  be  sup- 
posed to  have  intended  to  give  to  the  party,  to  communicate  his  determi- 
nation. 

5  A.  124. 

Art.  1804. — If  the  party,  making  the  offer,  die  before  it  is  accepted, 
or  he  to  whom  it  is  made,  die  before  he  has  given  his  assent,  the  repre- 
sentatives of  neither  party  are  bound,  nor  can  they  bind  the  survivor. 
But  if  the  contract  be  accepted  before  the  death  of  the  party  ofl'ering 
it,  although  he  had  no  notice  of  it,  the  obligation  is  complete ;  but  if 
the  representatives  assent  to  an  acceptance  of  the  surviving  party  in  the 
first  instance,  or  the  survivor  assent  to  an  acceptance  made  by  the  re 
preseutatives  in  the  second  instance,  then  it  becomes  a  new  contract  be- 
tween the  representatives  and  the  surviving  party. 

11  K.  298. 

Art.  1805. — The  proposition  as  well  as  thj  assent  to  a  contract  may 
be  express  or  implied  ; 

Express,  when  evinced  by  words,  eitlicr  written  or  spoken; 

19  L.  425;   5  R.  2.10;  1  A.  259;   3  A.  4CS,  523; 

Implied,  when  it  is  manifested  by  actions,  even  by  silence  or  by  in- 
action, in  cases  in  which  they  can  from  circumstances  be  supposed  to 
mean,  or  by  legal  presumption  are  directed  to  be  considered  as  evidence 
of  an  assent. 

11  L.  280,  288;  19  L,  42T;  Sec  17  L.  39G;  See  1810,  1811. 

Art.  180G. — Express  consent  must  be  given  in  a  language  under- 


245  OF  CONVENTIONAL  OBLIGATIONS.  245 

stood  by  the  party  wlio  accepts,  and  the  words  by  which  it  is  conveyed 
must  be  in  themselves  unequivocal :  if  they  mean  different  things,  they 
give  rise  to  error,  which,  as  is  hereinafter  provided,  destroys  the  effect 
of  a  contract.  ' 

Art.  1807. — Even  when  words  are  unequivocal  and  expressive  of  as- 
sent, they  are  not  always  obligatory,  when  from  the  context,  if  in  writing, 
or  from  what  in  speech  is  equivalent  to  it,  the  words  which  immediately 
precede,  or  follow,  it  appears  that  the  party  did  not  intend  to  obligate 
himself. 

Art.  1808. — Unequivocal  words,  expressive  of  mere  intent,  do  not 
make  an  obligation. 

9  L.  \U. 

Art.  1809. — A  positive  promise,  that,  from  the  manner  in  which  it 
is  made,  shows  that  there  was  no  serious  intent  to  contract,  creates  no 
obligation. 

Art.  1810. — Actions  without  words,  either  written  or  spoken,  are 
presumptive  evidence  of  a  contract,  when  they  are  done  under  circum- 
stances that  naturally  imply  a  consent  to  such  contract.  To  receive 
goods  from  a  merchant  without  any  express  promise,  and  to  use  them, 
implies  a  contract  to  pay  the  value.  If  an  offer  is  made  of  an  article  in 
deposit,  and  the  article  is  received,  the  contract  of  deposit  is  complete. 
If  a  mandate  is  acted  on,  the  mandatary  is  bound  in  the  same  manner  as 
if  he  had  accepted  in  w^riting.  In  all  those  cases  and  others  of  the  like 
nature,  all  the  conditions,  which  he,  who  gives  or  proposes,  annexed  to 
the  delivery  or  the  acceptance  of  the  proposition,  arc  also  presumed  to 
have  been  accepted  by  the  act  of  receiving.  If  the  merchant,  in  deliver- 
ing the  goods,  declare  that  they  must  be  paid  for  by  a  certain  time,  if 
the  depositor  designate  how  the  deposit  is  to  be  kept,  or  the  mandatary 
in  what  manner  his  commission  is  to  be  executed,  he  who  receives  and 
acts  is  obligated  to  the  performance  of  all  these  conditions. 

1  A.  11, 197;  8  A.  101. 

Art.  181 1. — Silence  and  inaction  are  also,  under  some  circumstances, 
the  means  of  showing  an  assent  that  creates  an  obligation  ;  if,  after  the 
termination  of  a  lease,  the  lessee  continue  in  possession,  and  the  lessor 
be  inactive  and  silent,  a  complete  mutual  obligation  for  continuing  the 
lease,  is  created  by  the  act  of  occupancy  of  the  tenant  on  the  one  side, 
and  the  inaction  and  silence  of  the  lessor  on  the  other. 

18  L.  517 ;  1  A.  11 ;  3  A.  i6S  ;  See  2  L.  149 ;  4  L.  195,  642 ;  17  L.  399,  897. 

Art.  1812. — Where  the  law  docs  not  create  a  legal  presumption  of 
proposition,  acceptance  or  consent  from  certain  facts,  then,  as  in  the  case 
of  other  simple  presumptions,  it  must  be  left  to  the  discretion  of  the 
judge,  whether  assent  is  to  be  implied  from  them  or  not. 

1  A.11. 


§  2. —  What  dffccU  of  foment  will  invalidate  a  Contract. 

Art.  1813. — Consent  being  the  concurrence  of  intention  in  two  or 
more  persons,  with  regard  to  a  matter  understood  by  all,  reciprocally 
communicated,  and  resulting  in  each  party  from  a  free  and  deliberate 


246  OF  CONVENTIONAL  OBLIGATIONS. 

exercise  of  the  will,  it  follows  that  there  is  no  consent,  not  only  where 
the  intent  has  not  been  mutually  communicated  or  implied,  as-is  provided 
in  the  preceding  paragraph,  but  also  where  it  has  been  produced  by 

Error ; 

Fraud ; 

Violence ; 

Threats. 

lOR.  65;  See  19  L.  362. 


§  3. — Of  Erroi\  its  Division  and  Effects. 

Art.  1814. — Error,  as  applied  to  contracts,  is  of  two  kinds: 

1.  Error  of  fact; 

2.  Error  of  law.  ^ 

S«e  6  L.  511. 

Art.  1815. — That  is  called  error  of  fact,  which  proceeds  either  from 
ignorance  of  that  which  really  exists,  or  from  a  mistaken  belief  in  the 
existence  of  that  which  has  none. 

13  L.  249 ;  4  E.  290 ;  Sec  7  L.  554. 

Art.  1816. — He  is  under  an  error  of  law,  who  is  truly  informed  of 
the  existence  of  facts,  but  who  draws  from  them  erroneous  conclusions 
of  law. 

Art.  1817. — Errors  may  exist  as  to  all  the  circumstancs  and  facts 
which  relate  to  a  contract,  but  it  is  not  every  error  that  will  invalidate 
it.  To  have  that  effect,  the  error  must  be  in  some  point,  which  was  a 
principal  cause  for  making  the  contract,  and  it  may  be  either  as  to  the 
motive  for  making  the  contract,  to  the  person  with  whom  it  is  made,  or 
to  the  subject  matter  of  the  contract  itself 

§  4. — Of  Error  in  the  ^otive. 

Art.  1818. — The  reality  of  the  cause  is  a  kind  of  precedent  condition 
to  the  contract,  without  which  the  consent  would  not  have  been  given, 
because  the  motive  being  that  which  determines  the  will,  if  there  be  no 
such  cause  where  one  was  supposed  to  exist,  or  if  it  be  falsely  repre- 
sented, there  can  be  no  valid  consent. 

4  L.  352;  5  L.  114;  19  L.  140;  10  II.  05;  See  4  L.  34T. 

Art.  1819. — The  error  in  the  cause  of  a  contract  to  have  the  effect 
of  invalidating  it,  must  be  on  the  principal  cause,  when  there  are  seve- 
ral ;  this  principal  cause  is  called  the  motive,  and  means  that  considera- 
tion without  which  the  contract  would  not  have  been  made. 

n  L.  445. 

Art.  1820. — No  error  in  tlie  motive  can  invalidate  a  contract,  unless 
the  other  party  was  apprised  that  it  was  the  principal  cause  of  the  agree- 
ment, or  unless  from  the  nature  of  the  transaction  it  must  be  presumed 
that  he  knew  it. 

15  L.  221 ;  IT  L.  445. 

Art.  1821. — But  wherever  the  motive  is  aj^parent,  although  not  made 
an  express  condition,  if  the  error  bears  on  that  motive,  the  contract  is 
void.     A  promise  to  give  a  certain  sum  to  bear  the  expenses  of  a  mar 


247  OF  CONVENTIONAL  OBLIGATIONS.  247 

riage,  wliicla  the  party  supposes  to  Lave  taken  place,  is  not  obligatory,  if 
there  be  no  marriage. 

Art.  182-2. — Thus,  too,  if  a  suit  be  brought  on  an  obligation  purport- 
ing to  have  been  made  by  the  ancestor  of  the  defendant,  and,  supposing 
it  to  be  true,  the  defendant  enters  into  a  compromise  or  promise  to  pay, 
the  compromise  or  promise  is  void,  if  it  should  be  afterwards  discov- 
ered that  the  obligation  was  forged. 

Art.  1823. — In  the  same  manner  a  compromise  of  a  suit,  and  any 
obligation  made  in  consequence  of  it,  is  void,  if,  at  the  time,  but  unknown 
to  the  parties,  the  suit  be  finally  decided.  But  if  the- decision  be  not 
final,  but  subject  to  appeal  or  revision,  the  compromise  is  valid. 

Art.  1821. — A  compromise  also  is  void,  where  one  of  the  parties  is 
ignorant  of  the  existence  of  a  paper,  which,  being  afterwards  discovered, 
shows  that  the  other  had  no  right,  and  this,  whether  the  other  party 
knew  the  existence  of  the  paper  or  not. 

Art.  1825. — But  if  the  compromise  be  of  all  differences  generally, 
and  there  were  other  subjects  of  dispute,  besides  that  in  which  the  error 
existed,  of  sufficient  importance  to  raise  a  presumption  that,  even  if  the 
error  had  been  discovered,  the  compromise  would  still  have  been  made, 
then  such  error  shall  not  invalidate  the  contract. 

9  L.  141. 

Art.  1826. — In  all  cases,  however,  when  the  information,  which 
would  have  destroyed  the  error,  has  been  withheld  by  the  other  party  to 
the  contract,  it  comes  under  the  head  of  fraud,  and  invalidates  the  con- 
tract. 

Seo  15  L.  280. 

Art.  1827. — Error  in  the  motive  also  is  shown  in  the  case  either  of 
an  insurance  on  property  or  an  annuity  on  lives.  If  the  propcrt}'  be  lost, 
or  the  life  be  at  an  end,  at  the  time  of  making  the  contract,  there  is  no 
obligation,  unless,  in  the  case  of  the  insurance,  it  be  expressly  stipulated 
that  the  insurer  takes  the  risk  of  those  events,  from  a  period  prior  to  the 
contract.  If  the  same  express  stipulation  take  place  in  the  case  of  the 
annuity,  it  then  becomes  an  insurance,  and  is  valid  for  the  same  reason. 

5  L.  lU. 

§  5. — Error  as  to  the  Person. 

Art.  1828. — Error  as  to  the  person  with  whom  the  contract  is  made, 
will  invalidate  it  if  the  consideration  of  the  person  is  the  principal  or 
only  cause  of  the  contract,  as  it  is  always  in  the  contract  of  marriage. 

Art.  1829. — In  contracts  of  beneficence,  the  consideration  of  the 
person  is  presumed  by  law  to  be  the  principal  cause. 

Art.  1830. — In  onerous  contracts,  such  as  sale,  exchange,  loan  for 
interest,  letting  and  hiring,  the  consideration  of  the  person  i.s  by  law  ge- 
nerally presumed  to  be  an  incidental  cause,  not  a  motive  for  a  contract. 

Art.  1831. — There  are  exceptions  to  the  rule  contained  in  the  last 
preceding  article. 

If,  from  the  nature  of  the  onerous  contract,  it  results  that  any  parti- 
cular skill  or  quality  be  required  in  its  execution,  which  the  party  with 


248  OF  CONVENTIONAL  OBLIGATIONS. 

whom  the  contract  is  made,  is  supposed  to  possess,  then  the  considera- 
tion of  the  person  is  presumed  to  be  the  principal  cause,  and  error  as  to 
the  person  invalidates  the  contract.  Thus,  if  intending  to  eniplo}^  an 
architect  of  great  eminence,  the  party  addresses  himself  by  mistake  to 
one  of  the  same  name,  who  has  little  or  no  skill,  the  promise  made  to 
him  for  compensation  is  void ;  but  if  any  thing  be  done  by  the  person 
thus  employed,  who  was  ignorant  of  the  mistake,  a  compensation,  pro- 
portioned to  his  service,  is  due. 

Art.  1832. — Error  as  to  the  quality  or  character  in  which  the  party 
acts,  as  well  as  a  mistake  as  to  the  person  himself,  invalidates  a  contract, 
when  such  a  quality  or  character  is  the  principal  cause  of  the  agreement. 
Thus,  a  compromise  with  one  who  is  supposed  to  be  the  heir  of  a  de 
ceased  creditor  of  the  party  contracting,  is  void,  if  he  be  not  really  the 
heir. 

4  L.  456. 

Art.  1833. — But  if  the  person  who  is  i-eally  entitled  to  the  quality 
assumed  by  the  one  with  whom  the  contract  is  made,  has  contributed  to 
the  error  by  his  neglect  or  by  design,  it  will  not  vitiate  the  agreement. 
And  in  the  case  above  stated,  a  payment  to,  or  a  compromise  with  one, 
whom  the  true  heir  suffered  to  remain  in  possession  of  the  inheritance, 
and  to  act  as  heir,  without  notice,  would  be  valid. 

Art.  1834. — Contracts  which  could  only  be  made  by  persons  possess- 
ing certain  powers,  either  delegated  by  contract,  given  by  virtue  of  any 
private  or  public  office,  or  vested  by  the  operation  of  law,  are  also  void, 
when  there  is  error  as  to  the  character,  quality  or  office,  under  color  of 
which  such  contract  was  made.  Contracts  entered  into  under  forged  or 
void  powers  or  assignments,  or  with  persons  without  authority  assuming 
to  act  as  public  or  j^rivate  officers,  are  governed  by  this  rule.  Contracts, 
however,  made  in  the  name  of  another,  under  void  powers,  will  be  valid 
if  ratified  by  the  princijial,  before  the  other  contracting  party  has  signi- 
fied his  dissent  to  the  agreement. 

§  G. — Of  Error  as  to  the  Nature  and  Object  of  tlie  Contract. 

Art.  1835. — Error  as  to  the  nature  of  the  contract  will  render  it 
void. 

The  nature  of  the  contract  is  that  which  characterizes  the  obligation 
which  it  creates.  Thus,  if  the  party  receives  property,  and  from  error 
or  ambiguity  in  the  words  accompanying  the  delivery,  believes  that  he 
has  purchased,  while  he  who  delivers  intends  only  to  pledge,  there  is  no 
contract. 

4  L.  852 ;  Sec  4  L.  34T ;  G  L.  500. 

Art.  183G. — Error  as  to  the  thing  which  is  the  subject  of  the  con- 
tract, does  not  invalidate  it,  unless  it  bears  on  the  substance  or  some 
substantial  quality  of  the  thing. 

See  1  A.  232. 

Art.  1837. — There  is  error  as  to  the  substance,  when  the  object  is 
of  a  totally  different  nature  from  that  which  is  intended.  Thus,  if  the 
object  of  the  stipulation  be  supposed  by  one  or  both  the  parties  to  be  an 


249  OF  CONVENTIONAL  OBLIGATIONS.  249 

ingot  of  silver,  and  it  really  is  a  mass  of  some  other  metal  that  resembles 
silver,  there  is  an  error  bearing  on  the  substance  of  the  object. 

See  1  A.  232. 

Art.  1838. — The  error  bears  on  the  substantial  quality  of  the  object 
when  such  quality  is  that  which  gives  it  its  greatest  value.  A  contract 
relative  to  a  vase,  supposed  to  be  of  gold,  is  void  if  it  be  only  plated 
with  that  metal, 

4  L,  852. 

Art.  1839. — Error  as  to  the  other  qualities  of  the  object  of  the  con- 
tract, only  invalidates  it,  when  those  qualities  are  such  as  were  the  prin- 
cipal cause  of  making  the  contract. 


§  7. — Errors  of  Law. 

Art.  1840. — Error  in  law,  as  well  as  error  in  fact,  invalidates  a 
contract,  where  such  error  is  its  only  or  principal  cause,  subject  to  the 
following  modifications  and  restrictions  : 

1.  Although  the  party  may  have  been  ignorant  of  his  right,  yet  if 
the  contract,  made  under  such  error,  fulfilled  any  such  natural  oljligation 
as  might  from  its  nature  induce  a  presumption  that  it  was  made  in  con- 
sequence of  the  obligation,  and  not  from  error  of  right,  then  such  error 
shall  not  be  alleged  to  avoid  the  contract.  Thus,  the  natural  obligation 
to  perform  the  will  of  the  donor,  prevents  the  donee  from  reclaiming 
legacies  or  gifts  he  has  paid  under  a  testament  void  only  for  want  of 
form ; 

4  L.  456,  460. 

2.  A  contract,  made  for  the  purpose  of  avoiding  litigation,  cannot  be 
rescinded  for  error  of  law  ; 

4  R.  207 ;  See  5  L.  113 ;  7  L.  554 ;  13  L.  100. 

3.  Error  of  law  can  never  be  alleged  as  the  means  of  acquiring, 
though  it  may  be  invoked  as  the  means  of  preventing  a  loss  or  of  reco- 
vering what  has  been  given  or  paid  under  such  error.  The  error,  under 
which  a  possessor  may  be  as  to  the  illegality  of  his  title,  shall  not  o-ivc 
him  a  right  to  prescribe  under  it ; 

4.  A  judicial  confession  of  a  debt  shall  not  bo  avoided  by  an  allega- 
tion of  error  of  law,  though  it  may  be  by  showing  an  error  of  fact ; 

5.  A  promise  or  contract,  that  destroys  a  prescriptive  right,  shall 
not  be  avoided  by  an  allegation  that  the  party  was  ignorant  or  in  an  error 
with  regard  to  the  law  of  prescription  ; 

G.  If  a  party  has  an  exception,  that  destroys  the  natural  as  well  aa 
the  perfect  obligation,  and,  througli  error  of  law,  makes  a  promise  or 
contract  that  destroys  such  exception,  he  may  avail 'himself  of  such  er- 
ror; but  if  the  exception  destr  lys  only  the  perfect,  but  not  the  natural 
obligation,  error  of  law  shall  not  avail  to  restore  the  exception. 


250  OF  CONVENTIONAL  OBLIGATIONS. 

§  8. — Of  the  Xullity  resulting  from  Fraud. 

Art.  1841. — Fraud,  as  applied  to  contracts,  is  the  cause  3f  an  error 
bearing  on  a  material  part  of  the  contract,  created  or  continued  by  arti- 
fice, with  design  to  obtain  some  unjust  advantages  to  the  one  party,  or 
to  cause  an  inconvenience  or  loss  to  the  othei'.  From  which  definition 
are  drawn  the  following  rules  : 

1 .  Error  is  an  essential  part  of  the  definition  ;  an  artifice  that  can- 
not deceive,  can  have  no  effect  in  influencing  the  consent,  and  cannot  in- 
jure the  validity  of  the  contract ; 

2.  The  error  must  be  on  a  material  part  of  the  contract,  that  is  to 
say,  such  part  as  may  reasonably  be  presumed  to  have  influenced  the 
party  in  making  it ;  but  it  needs  not  be  the  principal  cause  of  the  con- 
tract, as  it  must  be  in  the  case  of  simple  error  without  artifice  ; 

3.  A  false  assertion  as  to  the  value  of  that  which  is  the  object  of  the 
contract,  is  not  such  an  artifice  as  will  invalidate  the  agreement,  pro- 
vided the  object  is  of  such  a  nature  and  is  in  such  a  situation  that  he, 
who  is  induced  to  contract  by  means  of  the  assertion,  might  with  ordi- 
nary attention  have  detected  the  falsehood  ;  he  shall  then  be  supposed 
to  have  been  influenced  more  by  his  own  judgment  than  the  assertion  of 
the  other  ; 

4.  But  a  false  assertion  of  the  value  or  cost,  or  quality  of  the  object, 
will  constitute  such  artifice,  if  the  object  be  one  that  requires  particular 
skill  or  habit,  or  any  difficult  or  inconvenient  operation  to  discover  the 
truth  or  falsity  of  the  assertion.  Sales  of  articles,  falsely  asserted  to 
be  composed  of  precious  metals,  sales  of  merchandise  by  a  false  invoice, 
of  any  article  by  a  false  sample,  of  goods  in  packages  or  bales,  which 
cannot  without  inconvenience  be  unpacked  or  inspected,  or  where  the 
party  making  the  sale  avoids  the  inspection  with  intent  to  deceive,  of 
goods  at  sea  or  at  a  distance,  of  slaves  with  a  false  assertion  of  their 
qualities,  or  a  concealment  of  their  vices  or  defects,  are,  with  others  of 
like  nature,  referable  to  this  rule  ; 

5.  It  must  be  caused  or  continued  by  artifice,  by  which  is  meant 
either  an  assertion  of  what  is  false,  or  a  suppression  of  what  is  true,  in 
relation  to  such  part  of  the  contract  as  is  stated  in  the  second  rule ; 

6.  The  assertion  and  suppression,  mentioned  in  the  last  preceding 
rule,  mean  not  only  an  affirmation  or  negation  by  words  either  written 
or  spoken,  but  any  other  means  calculated  to  produce  a  belief  of  what  is 
false,  or  an  ignorauce  or  disbelief  of  what  is  true  ; 

7.  The  artifice  must  be  designed  to  obtain  either  an  unjust  advan- 
tage to  the  party  for  whose  benefit  the  artifice  is  carried  on,  or  a  loss  or 
inconvenience  to  him  against  whom  it  is  practised,  although  attended 
with  advantage  to  no  one  ; 

8.  It  is  not  necessary  that  either  of  the  effects  mentioned  in  the  last 
preceding  rule,  should  have  actually  been  produced ;  it  is  sufficient  to 


251  OF  CONVENTIONAL  OBLIGATIONS.  251 

constitute  tlie  fraud,  that  such  would  be  the  effect  of  the  contract,  if  it 
were  actually  performed ; 

9.  If  the  artifice  be  practised  by  a  party  to  the  contract,  or  by  an- 
other with  his  knowledge  or  by  his  procurement,  it  vitiates  the  contract; 
but  if  the  artifice  be  practised  by  a  third  person,  without  the  knowledge 
of  the  party  who  benefits  by  it,  the  contract  is  not  vitiated  by  the  fraud, 
although  it  may  be  void  on  account  of  error,  if  that  error  be  of  such  a 
nature  as  to  invalidate  it ;  in  this  case  the  party  injured  may  recover 
his  damages  against  the  person  practising  the  fraud  ; 

10.  In  the  words  "loss  or  inconvenience"  which  maybe  suffered 
by  the  party,  is  included  the  preventing  him  from  obtaining  any  gain  or 
advantage,  which,  without  the  artifice,  he  might  have  obtained ; 

1 1.  If  the  advantage  to  be  gained  by  the  party,  in  favor  of  whom 
the  artifice  is  practised,  gives  him  no  unjust  advantage,  that  is  to  say, 
no  advantage  at  the  expense  of  the  other  party,  and  this  latter  would 
neither  suffer  inconvenience  nor  loss  in  consequence  of  the  deception,  if 
the  contract  were  performed,  the  artifice  does  not  vitiate  it. 

12.  Combinations  with  respect  to  sales  to  enhance  the  price  by  false 
bids  or  offers,  or  to  depress  it  by  false  assertions,  are  artifices,  which  in- 
validate the  contract,  when  practised  by  those  who  are  parties  to  it,  or 
give  rise  to  an  action  for  damages  where  they  are  not. 

6L.500;  9L.  129;  4K.  290;  1  A.  3S9;  GA.3S5;  Soc9L.  17;  11  L.  401;  13  L.  204,  534;  15  L.  218; 

9  K.  436. 

Art.  1842. — Fraud,  like  every  other  allegation,  must  be  proved  by 
him  who  alleges  it,  but  it  may  be  proved  by  simple  presumptions,  by  legal 
presumptions,  as  well  as  by  other  evidence.  The  maxim  that  fraud  is 
not  to  be  presumed,  means  no  more  than  that  it  is  not  to  be  imputed 
without  legal  evidence. 

12  R.  284  ;  2  A.  458 ;  3  A.  600;  Seo  1  N.  S.  451 :  2  L.  78 ;  C  L.  500 ;  IC  L.  363. 

Art.  1843. — Some  circumstances  and  acts  attending  particular  con- 
tracts, are  by  law  declared  to  be  conclusive ;  and  others,  presumptive 
evidence  of  fraud.  These  laws  will  be  found  in  the  proper  divisions  of 
this  code,  treating  of  these  contracts. 


§  9. —  Of  the  Want  of  Consent  arising  from  Violence  or  Threats. 

Art.  1844. — Consent  to  a  contract  is  void,  if  it  be  produced  by  vio- 
lence or  threats,  and  the  contract  is  invalid. 

See  12  K.  87S. 

Art.  1845. — It  is  not  every  degree  of  violence  or  every  kind  of  threats, 
that  will  invalidate  a  contract ;  they  must  be  such  as  would  naturally 
operate  on  a  person  of  ordinary  firmness,  and  inspire  a  just  fear  of  great 
injury  to  person,  reputation  or  fortune.  The  age,  sex,  state  of  health, 
temper  and  disposition  of  the  party,  and  other  circumstances  calculated 


252  OF  CONVENTIONAL  OBLIGATIONS. 

to  give  greater  or  less  ofFect  to  the  violence  or  threats,  must  be  taken 
into  consideration. 

See  12  K.  378. 

Akt.  1846. — A  contract,  produced  by  violence  or  threats,  is  void, 
although  the  party,  in  whose  favor  the  contract  is  made,  did  not  exer- 
cise the  violence  or  make  the  threats,  and  although  he  were  ignorant  of 
them. 

Art.  1847. — Violence  or  threats  are  causes  of  nullity,  not  only  where 
they  are  exercised  on  the  contracting  party,  but  also  when  the  wife,  the 
husband,  the  descendants  or  ascendants  of  the  party  are  the  object  of 
them. 

Art.  1848. — The  mere  reverential  fear  of  a  relation  in  the  ascending 
line,  where  no  violence  has  been  offered,  nor  threats  made,  will  not  in- 
validate a  contract. 

Art.  1849. — No  contract  can  be  invalidated  on  an  allegation  of  vio- 
lence or  threats,  if  it  has  been  approved,  either  expressly  after  the  vio- 
lence or  danger  has  ceased,  or  tacitly  by  suffering  the  time  limited  to 
elapse  without  causing  it  to  be  rescinded. 

IT  L.  2S9, 293. 

Atr.  1850. — If  the  violence  used  be  only  a  legal  constraint,  or  the 
threats  only  of  doing  that  which  the  party  using  them  had  a  right  to  do, 
they  shall  not  invalidate  the  contract.  A  just  and  legal  imprisonment, 
or  threats  of  any  measure  authorized  by  law  and  by  the  circumstances 
of  the  case,  are  of  this  description. 

See  10  M.  lOG. 

Art.  1851. — But  the  mere  forms  of  law  to  cover  coercive  proceed- 
ings for  an  unjust  and  illegal  cause,  if  used  or  threatened  in  order  to 
procure  the  assent  to  a  contract,  will  invalidate  it.  An  arrest  Avithout 
cause  of  action,  or  a  demand  of  bail  in  an  unreasonable  sum,  or  threats 
of  such  proceeding,  by  this  rule  invalidate  a  contract  made  under  their 
pressure. 

Art.  1852. — A  contract  made  with  one  having  no  agency  in  the  vio- 
lence used,  or  the  threats  made  for  the  pvirpose  of  delivering  the  party 
from  the  constraint  under  which  he  is,  or  from  the  danger  with  which  he 
is  menaced,  shall  not  be  invalidated  by  reason  of  such  violence  or  threats, 
provided  the  contract  be  made  in  good  faith  and  without  collusion  with 
the  offending  party.  A  contract  to  procure  a  rescue  of  person  or  goods 
from  pirates  or  robbers,  is  an  example  of  this  rule. 

Art.  1853. — All  the  above  articles  relate  to  cases  where  there  may 
be  some  other  motive  besides  the  violence  or  threats  for  making  tlie  con- 
tract. Where,  however,  there  is  no  other  cause  for  the  contract,  any 
threats,  even  of  slight  injury,  will  invalidate  it. 

12  K.  878. 


§  10.—  ^/  Lesion. 

Art.  1854. — Lesion  is  the  injury  suffered  by  one,  who  does  not  re- 
ceive a  full  equivalent  for  what  he  gives  in  a  commutative  contract.    The 


253  OF  CONVENTIONAL  OBLIGATIONS.  253 

remedy  given  for  this  injury,  is  founded  on  its  being  the  effect  of  implied 
eri'or  or  imposition ;  for,  in  every  commutative  contract,  equivalents  are 
supposed  to  be  given  and  received. 

10  L.  423;  See  2  N.  S.  73 ;  5  L.  3S2 ;  IC  L.  421 ;  IG  L.  3S0 ;  4  E.  45. 

Art.  1855. — The  law,  however,  will  not  release  a  person  of  full  age, 
and  who  is  under  no  incapacity,  against  the  effect  of  his  voluntary  con- 
ti-acts,  on  account  of  such  implied  error  or  imposition,  except  in  the  two 
following  cases : 

1.  In  partition,  where  there  is  a  difference  in  the  value  of  the  portions 
to  more  than  the  amount  of  one-fourth  to  the  prejudice  of  one  of  the 
parties ; 

2.  In  sales  of  immovable  property,  the  vendor  may  be  relieved,  if 
the  price  given  is  less  than  one-half  of  the  value  of  the  thing  sold; 
but  the  sale  cannot  be  invalidated  for  lesion  to  the  injury  of  the  pur- 
chaser. 

Art.  1856. — Lesion  can  be  alleged  by  persons  of  full  age  in  no  other 
sale  than  one  for  immovables,  by  whicli  is  meant  whatever  is  immovable 
by  destination,  including  slaves,  when  sold  with  the  plantations  on  which 
they  labor. 

Art.  1857. — Persons  of  full  age  are  relieved  for  lesion  in  no  other 
contracts  than  those  above  expressed,  not  even  in  exchange,  which  bears 
some  resemblance  to  the  contract  of  sale. 

Art.  1858. — Minors,  not  emancipated,  are  relicvablc  against  simple 
lesion  in  every  species  of  contract.  That  is  called  simple  lesion,  in 
which  the  amount  to  be  suffered  by  it,  is  not  designated  by  law,  as  it  is 
in  the  cases  above  mentioned  of  partition  and  sale  between  poisons  of 
full  age. 

Art.  1859. — As  to  such  contracts  as  they  are,  by  virtue  of  their 
emancipation,  authorized  to  make,  they  are  entitled  to  no  other  relief 
against  lesion  than  if  they  were  of  full  age.  As  to  all  other  contracts, 
which  they  can  make  only  under  certain  formalities,  they  are  in  the  same 
situation  with  other  minors,  and  may  have  relief  for  simple  lesion,  or 
prosecute  the  action  of  nullity  against  the  contract. 

Art.  1860. — Lesion  needs  not  be  alleged  to  invalidate  such  con- 
tracts as  are  made  by  minors,  either  without  the  intervention  of  their 
tutors  or  curators,  or  with  such  intervention,  but  unattended  by  the 
forms  prescribed  by  law.  Such  contracts,  being  void  by  law,  may  be 
declared  so,  either  in  a  suit  for  nullity  or  on  exception,  Avithout  any 
other  proof  than  that  of  the  minority  of  the  party  and  the  want  of  for- 
mality in  the  act. 

Art.  1861. — But  in  contracts  made  with  minors,  when  duly  autho- 
rized, and  when  all  the  forms  of  law  have  been  pursued,  on  alleging  and 
proving  even  simple  lesion,  they  will  be  relieved  with  the  exception  of 
the  cases  provided  for  in  the  next  two  articles. 

See  4  K  37a 

Art.  1862. — When  all  the  formalities  required  by  law  for  the  alien- 
ation or  the  partition  of  the  property  of  minors,  or  pcr,sons  interdicted, 
have  been  fulfilled,  the  acts  made  for  those  purposes  shall  have  the  same 
force,  as  if  they  had  been  executed  by  persons  of  full  age  and  sound 
mind. 


254  OF  CONVENTIONAL  OBLIGATIONS. 

Art.  18G3. — No  lesion  whatever,  even  in  the  case  of  minors,  can 
invalidate  judicial  sales,  or  sales  of  insolvent's  property  made  by  syndics 
or  other  trustees.  Sales,  directed  or  authorized  by  courts  of  probates, 
are  judicial  sales  under  this  provision. 

13  L.  486. 

Art.  18G4. — When  lesion  is  alleged  to  invalidate  a  partition  or 
sale,  the  party  alleging  it  must  first  prove  the  value  of  the  property  sold, 
in  the  state  in  which  it  was  at  the  time  of  the  contract,  according  to  the 
usual  terms  of  credit  given  on  sales  of  property  of  that  description.  He 
must  then  show  how  much  the  price  given  Avas  less  than  such  value  ;  but 
if  the  price  given  was  paid  at  longer  periods  than  those  usually  given  on 
such  sales,  the  interest  for  the  time  exceeding  such  usual  credit  must  be 
deducted  from  such  price ;  or,  if  the  price  was  paid  in  shorter  periods 
than  those  of  such  usual  credit,  then  the  interest  for  the  time  such  pay- 
ment has  fallen  short  of  the  usual  credit,  shall  be  added  to  the  price 
actually  paid,  and  from  a  comparison  of  the  price  after  these  additions 
or  deductions  with  the  estimated  value,  the  court  shall  determine  whe- 
ther, according  to  law  applied  to  the  circumstances  of  the  case,  there  is 
a  lesion  sufficient  to  invalidate  the  contract. 

6  L.  TC2. 

Art.  1865. — In  all  questions  of  lesion  the  value  of  that  which  was 
the  subject  of  the  contract  at  the  time  of  making  it,  is  the  rule  by  which 
the  lesion  is  to  be  ascertained.  Even  in  the  case  of  minors,  changes  in 
value  by  subsequent  events  are  not  to  affect  the  conti-act. 

Art.  1866. — If  a  minor  should,  at  the  time  of  the  contract,  declare 
himself  of  full  age,  it  will  be  no  bar  to  his  obtaining  relief  against  lesion. 

Art.  1867. — A  minor,  who  is  a  banker,  factor,  ti-ader  or  artisan,  is 
not  relicvable  against  lesion  in  contracts  made  for  the  purpose  of  his 
trade  or  business,  nor  is  he  relievable  against  lesion  in  any  of  the 
stipulations  of  his  marriage  contract,  if  such  contract  be  made  with  the 
consent  and  pursuant  to  the  formalities  in  such  case  provided  by  law. 

15L.  14;  2E.  513;  2  A.  398. 

Art.  1868. — He  is  not  relievable  against  obligations  resulting  from 
offences  or  quasi  offences. 

Art.  1869. — A  ratification  made  by  a  person  of  full  age  of  any  con- 
tract made  during  his  minority,  cures  all  defects  arising  as  well  from  the 
want  of  the  necessary  formalities  as  from  the  want  of  a  proper  consider- 
ation. No  action  for  nullity  or  lesion  can  be  brought  after  such  ratifi- 
cation. 

6  R.  429  ;  2  A.  3GT. 


Art.  1870. — Actions  for  lesion  are  limited  to  four  years,  to  date 
from  the  time  of  the  contract  between  the  persons  of  full  age,  and  from 
the  age  of  majority  in  contracts  of  minors. 

.       8  A.  533. 


255  OF  CONVENTIONAL  OBLIGATIONS.  255 

Art.  1871. — In  actions,  brought  for  relief  against  a  sale  or  partition 
made  between  persons  of  full  age,  or  in  a  like  action,  brought  for  lesion 
only,  in  a  sale  made  by  a  minor  or  on  his  account,  the  purchaser  may 
elect  either  to  rescind  the  sale,  or  to  have  it  confirmed  on  paying  the 
full  value.  But  this  election  must  be  made  within  a  period  to  be  desig- 
nated in  an  interlocutory  degree,  determining  the  true  value  and  the 
terms  on  which  the  payment  is  to  be  made. 

3  A.  569. 

Art.  1872. — If  the  purchaser  elect  to  rescind  the  sale,  he  must 
restore  the  property  with  all  the  profits  received,  or  which  he  might 
have  received  from  the  property  from  the  time  of  bringing  the  suit ;  and 
the  seller  shall  repay  the  purchase  money,  which  he  has  received,  with 
interest  from; the  same  time,  give  up  and  cancel  the  securities  given  for 
such  part,  if  any,  as  remains  unpaid ;  and  moreover  pay  for  such  im- 
provements made  by  the  purchaser  as  add  a  permanent  value  to  the 
property,  according  to  their  value  at  the  time  of  the  rescission  of  the 
sale. 

G  L.  7G2. 

Art.  1873. — The  purchaser,  on  his  part,  in  case  of  rescission,  is 
accountable  for  all  injuries  and  dilapidations  arising  from  his  neglect  or 
fault. 

Art.  1874. — The  judge,  in  pronouncing  the  final  decree,  shall  make 
compensation  between  the  parties  of  their  respective  demands,  and 
determine  what  balance  shall  be  paid,  and  by  which  of  the  parties, 
according  to  the  principles  stated  in  the  preceding  articles. 


§  11. —  General  Provisionn  applicahle  to  Error^  Violence  and  Fraud  in 

Contracts. 

Art.  1875. — Engagements  made  througli  error,  violence,  fraud  or 
menace,  are  not  absolutely  null,  but  are  voidable  by  the  parties  who 
have  contracted  under  the  influence  of  such  error,  fraud,  violence  or 
menace,  or  by  the  representatives  of  such  parties. 

See  T  L.  49S. 

Art.  1876. — They  may  be  avoided  either  by  exception  to  suits 
brought  on  such  contracts,  or  by  an  action  brought  for  that  purpose. 

Section  ill. — Of  the  Object  and  Matter  of  Contracts. 

Art.  1877. — Every  contract  has  for  its  object  something  wliich  one 
or  both  of  the  parties  oblige  themselves  to  give,  or  to  do,  or  not  to  do. 

Sec  7  L.  493. 

Art.  1878. — The  more  use  or  the  mere  possession  of  a  thing,  may 
be,  as  well  as  the  thing  itself,  the  object  of  a  contract. 

Art.  1879. — All  things,  in  the  most  extensive  sense  of  the  expres- 
sion, corporeal  or  incorporeal,  movable  or  immovable,  to  which  rights 
can  legally  be  acquired,  may  become  the  object  of  contracts. 

See  17  L.  447. 


256  OF  CONVENTIONAL  OBLIGATIONS. 

Art.  18S0. — An  obligation  must  have  for  its  object,  something  de- 
terminate, at  least  as  to  its  siDccies. 

The  quantity  of  a  thing  may  be  uncertain,  provided  it  be  capable  of 
being  ascertained. 

Art.  1881. — Future  things  may  be  the  object  of  an  obligation. 

One  cannot,  however,  renounce  the  succession  of  an  estate  not  yet 
devolved,  nor  can  any  stipulation  be  made  with  regard  to  such  a  succes- 
sion, even  with  the  consent  of  him  whose  succession  is  in  question. 

Art.  1882. — Yet  a  future  succession  may  become  the  object  of  a 
marriage  contract;  it  may  be  stipulated  that  such  succession  shall  be 
dotal  or  paraphernal,  that  it  should  be  vested  in  real  estate,  or  other 
covenants  of  the  like  nature,  for  the  benefit  of  one  of  the  parties  or 
their  children. 

Art.  1883. — No  one  can,  by  a  contract  in  his  own  name,  bind  any 
one  but  himself  or  his  representatives  ;  but  he  may  contract  in  his  own 
name,  that  another  shall  ratify  or  perform  the  stipulation  which  he 
makes,  and  in  this  case  he  shall  be  liable  in  damages,  if  the  contract  be 
not  ratified  or  performed  by  the  person  for  whose  act  he  stipulates. 

Sep  11  L.  28G. 

Art.  1884. — A  person  may  also,  in  his  own  name,  make  some  ad- 
vantage for  a  third  person  the  condition  or  consideration  of  a  commu- 
tative contract,  or  onerous  donation ;  and  if  such  third  person  consents 
to  avail  himself  of  the  advantage  stipulated  in  his  favor,  the  contract 
cannot  be  revoked. 

2N.  S.  G72:  3  N.  8.607;  4N.  S.  527;  6N.  S.  152;  5  L.  31C;  9  K.  19;  1  A.  2S0,  372 ;  2  A.  940  ;  8  A 

129 ;  5  A.  225. 

Art.  1885. — The  object  of  a  contract  must  be  possible,  by  which  is 
meant  physically  or  morally  possible.  The  possibility  must  be  deter- 
mined, not  by  the  means  or  ability  of  the  party,  but  by  the  nature  of 
things. 

3  A.  203 ;  4  A.  143 ;  See  5  N.  S.  409 ;  2  R.  163 ;  See  1960. 

Art.  1886. — That  is  considered  as  morally  impossible  which  is  for- 
bidden by  law  or  morals.     All  contracts  having  such  an  object  are  void. 

3  A.  203 ;  4  A.  145, 519,  541 ;  5  A.  225,  G93 ;  See  1SS5, 1960. 


Section  IV. — Of  tJic  Cause  or  Consideration  of  Contracts. 

Art.  1.887. — An  obligation  without  a  cause,  or  with  a  false  or  un- 
lawful cause,  can  have  no  effect. 

3  N.  S.  205 ;  6  N.  S.  217 ;  1  L  2SS ;  5  E.  101 ;  1  A.  192 ;  See  12  E.  302, 378 ;  1  A.  176. 

Art.  1888. — An  agreement  is  not  the  less  valid,  though  the  cause 
be  not  expressed. 

5  L.  T2,  78  ;  6  L.  217 ;  1  A.  192,;  3  A.  230 ;  Sec  10  L.  167 ;  1  A.  176. 


257  OF  CONVENTIONAL  OBLIGATIONS.  257 

Art.  1889. — The  cause  is  illicit,  when  it  is  forbidden  by  law,  wlicn 
it  is  contra  bonos  mores  (contrary  to  moral  conduct)  or  to  public  order. 

3N.  S.205;  5N.  S.  409;  CN.  S.  217;  IL.  2SS;  Seo2  R.  1G3;  12  E.  302. 

Art.  1890. — By  the  cause  of  the  contract  in  this  section  is  meant 
the  consideration  or  motive  for  making  it,  and  a  contract  is  said  to  be 
without  a  cause,  whenever  the  party  was  in  error,  supposing  that  which 
was  his  inducement  for  contracting  to  exist,  when  in  fact  it  had  never 
existed,  or  had  ceased  to  exist  before  the  contract  was  made. 

19  L.  140  ;  See  2  E.  163 ;  12  R.  302. 

Art.  1 89 1 . — The  contract  is  also  considered  as  being  without  cause 
when  the  consideration  for  making  it  was  something  which,  in  the  con- 
templation of  the  parties,  was  thereafter  expected  to  exist  or  take  place, 
and  which  did  not  take  place  or  exist.  A  gift  in  consideration  of  a  fu- 
ture marriage  is  void  by  this  rule,  if  the  marriage  do  not  take  place. 

Art.  1892. — Where  the  consideration  or  cause  of  the  contract  really 
exists  at  the  time  of  making  it,  but  afterwards  fails,  it  will  not  affect 
the  contract,  if  all  that  was  intended  by  the  parties  be  carried  into 
effect  at  the  time.  The  destruction  of  property  sold,  after  the  sale  is 
perfected,  without  the  fault  of  the  seller,  is  a  case  governed  by  this 
rule. 

Art.  1893. — But,  if  the  contract  consists  of  several  successive  obli- 
gations to  be  performed  at  different  times,  and  the  equivalent  is  not 
given  in  advance  for  the  whole,  but  is  either  expressly  or  impliedly  pro- 
mised to  be  given  at  future  periods ;  then,  if  the  cause  of  the  contract, 
corresponding  to  either  of  the  successive  obligations,  should  fail,  the 
obligation  depending  on  it  will  cease  also.  Thus,  in  leases  for  years, 
the  obligation  to  pay  the  yearly  rent  ceases,  if  the  property  which  is 
leased  should  be  destroyed. 

19  L.  140;  See  14  L.  501. 

Art.  1894. — If  the  cause  expressed  in  the  consideration  should  be 
one  that  does  not  exist,  yet  the  contract  cannot  be  invalidated  if  the 
party  can  show  the  existence  of  a  true  and  sufficient  consideration. 

10  L.  164 ;  0  A.  230, 280. 


CHAPTER  III. 

OF    THE    EFFECT    OF    OBLIGATIONS. 

Section  I. —  General  Dispositions. 

Art.  1895. — Agreements,  legally  entered  into,  have  the  effect  of 
laws  on  those  who  have  formed  them. 

They  cannot  be  revoked,  unless  by  mutual  consent  of  the  parties,  or 
for  causes  acknowledged  by  law. 

They  must  be  performed  with  good  faith. 

See  2  R.  163. 

Art.  1896. — But  a  contract,  in  which  any  thing  is  stipulated  foi 
the  benefit  of  a  third  person,  who  has  signified  his  assent  to  accept  it, 
17 


:258  OF  CONVENTIONAL  OBLIGATIONS. 

cannot  be  revoked  as  to  the  advantage  stipulated  in  his  favor,  witliout 
his  consent. 

1  A.  372 ;  3  A.  129 ;  12  R.  152;  See  IS04. 

Art.  1897. — The  obligation  of  contracts  extends  not  only  to  what 
is  expressly  stipulated,  but  also  to  every  thing  that,  by  law,  equity,  or 
custom,  is  considered  as  incidental  to  the  particular  contract,  or  ueces- 
sar}'  to  carry  it  into  effect. 

3  L.  225,  22S  ;  1  A.  419 ;  3  A.  COO. 

Art.  1898. — Contracts,  as  to  their  effects  upon  property  or  real 
rights,  are  of  two  kinds : 

1.  Such  as  purport  a  transfer  of  that  which  is  the  object  of  the  cor- 
tract ; 

2.  Such  as  only  give  a  temporary  right  to  the  enjoyment  of  it. 


Section  II. — Of  the  ObHsatioii  of  Giving. 

Art.  1899. — The  term  to  give,  in  thi.^*  division  of  obligations,  is  ap- 
plied only  to  corporeal  objects,  that  may  be  actually  delivered  from  one 
to  another ;  and  it  includes  the  payment  of  money  as  well  as  the  delivery 
of  any  other  article.  A  covenant,  respecting  an  incorporeal  right,  comes 
under  the  definition  of  contracts  to  do  or  not  to  do,  because  some  act, 
besides  that  of  deliver}^  is  necessary  for  the  transfer  of  such  rights. 

Art.  1900. — A  contract  for  the  delivery  of  a  promissory  note  pay- 
able to  bearer,  or  payable  to  order,  and  already  indorsed,  or  any  other 
negotiable  paper  of  the  same  nature,  also  indorsed,  or  transferable  by 
delivery  only,  comes  under  the  description  of  a  contract  to  give  ;  but  a 
contract  to  transfer  a  note  to  order  not  indorsed,  or  any  other  debt  that 
requires  an  act  of  transfer,  is  an  obligation  to  do. 

Art.  1901. — The  obligation  of  giving  includes  that  of  delivering  the 
thing,  and  of  keeping  it  safe,  until  tlie  delivery  of  it.  The  person  who 
contracts  to  give,  being  liable,  on  failure,  to  pay  damages  to  the  person 
with  whom  he  has  contracted. 

Art.  1902. — The  obligation  of  carefully  keeping  the  tiling,  Avhcther 
the  object  of  the  contract  be  solely  the  utility  of  one  of  the  parties,  or 
whether  its  object  be  their  common  utility,  subjects  the  person,  who  has 
the  thing  in  his  keeping,  to  take  all  the  care  of  it  that  could  be  expected 
from  a  prudent  administrator. 

This  obligation  is  more  or  less  extended  with  regard  to  certain  con- 
tracts, the  effects  of  which,  in  this  respect,  arc  explained  under  their  re- 
spective titles. 

See  18  L.  553 ;  1  A.  844. 

Art.  1903. — If  the  obligation  be  to  deliver  an  object  which  is  par- 
ticularly specified,  it  is  perfect  by  the  mere  consent  of  the  parties.  It 
renders  the  creditor  the  owner,  and  although  it  was  not  delivered  to  him, 
puts  the  thing  at  his  risk  from  the  date  of  the  obligation,  if  the  contract 
was  one  of  those  that  purport  a  transfer. 

2  A.  054,  746 ;  See  1914. 

Art.  1904. — But  if  the  debtor  of  a  thing  is  in  default  for  not  having 
made  the  delivery,  it  is  at  his  risk  from  the  time  of  his  default. 

C  L.  159 ;  See  2  K.  313 ;  1  A.  409. 


259  OF  CONVENTIONAL  OBLIGATIONS  259 

Art.  1905. — Tlie  debtor  may  be  put  in  default  iu  three  different 
ways  :  by  the  terms  of  the  contract,  by  the  act  of  the  creditor,  or  by  the 
operation  of  law : 

1  L.  269,  4G9 ;  5  L,  375 ;  3  A.  2flS,  444. 

1.  By  the  terms  of  the  contract,  when  it  specially  provides  that  the 
party,  failing  to  comply,  shall  be  deemed  to  be  in  default  by  the  mere 
act  of  his  failure ; 

5L.  3T5;  6  R.  450. 

2.  By  the  act  of  the  party,  when  at  or  after  the  time  stipulated  for 
the  performance,  he  demands  that  it  sliall  be  carried  into  effect,  which  de- 
mand may  be  made,  cither  by  the  commencement  of  a  suit,  by  a  demand 
in  writing,  by  a  protest  made  by  a  notary  public,  or  by  a  verbal  requisi- 
tion made  in  the  presence  of  two  witnesses ; 

5  L.  375 ;  9  L.  47S ;  17  L.  810,  341,  34G ;  18  L.  SS  ;  9  R.  492 ;  Seo  1  L.  2G9 ;  3  L.  99. 

3.  By  the  operation  of  law.  This  takes  place  in  cases  where  the 
breach  of  the  contract  alone  is  by  law  declared  to  be  equivalent  to  a  de- 
fault. The  law  having  declared  that  the  neglect  to  return  a  thing  loan- 
ed for  use,  at  the  stipulated  time,  or  the  application  of  it  to  another  use 
than  the  one  for  which  it  was  lent,  puts  it  at  the  risk  of  tlie  borrower ; 
this  without  any  act  of  the  lender  puts  the  borrower  in  default,  and  forms 
an  example  of  this  part  of  the  rule. 

1  A.  391 ;  See  IS  L.  91. 

Art.  1906. — The  effects  of  being  put  in  default  are  not  only  that,  in 
contracts  to  give  the  tiling,  which  is  the  object  of  the  stipulation,  is  at 
the  risk  of  the  person  in  default ;  but  in  the  cases  hereinafter  provided 
for,  is  a  prerequisite  to  tlie  recovery  of  damages  and  of  profits  and  fruits, 
or  to  the  rescission  of  the  contract, 

6  N.  a  230,  624 ;  1  L.  9S ;  7  L.  193 ;  13  L.  229 ;  17  L.  S42 ;  18  L.  88 ;  2  R.  493 :  3  R. 400 ;  6  R. 450 ;  9  R. 
495 ;  10  R.  524 ;  1  A.  391 ;  3  A.  208. 

Art.  1907. — In  commutative  contracts,  where  the  reciprocal  obliga- 
tions are  to  be  performed  at  the  same  time,  or  the  one  immediately  after 
the  other,  the  party,  who  wishes  to  put  the  other  in  default,  must  at  the 
time  and  place  expressed  in,  or  implied  b}^  the  agreement,  offer  or  per- 
form, as  the  contract  requires,  that  which  on  his  part  was  to  be  perform- 
ed, or  the  opposite  party  will  not  be  legally  put  iu  default. 

8L.  882;  5L.8T5;  6  L.  154;  18  L.  229,449;  15  L.  297;  5  K.  83;  8  A.  274;  5;V.577;  &ce  1905. 

Art.  1908. — Although  the  contract  be,  cither  not  commutative,  or, 
if  commutative,  the  reciprocal  obligations  are  not  to  be  performed  at  the 
same  time,  yet  the  party  wishing  to  put  the  other  in  default,  must  be 
himself  ready,  and  must  offer  to  receive  the  performance  at  the  time  and 
place  stipulated  in  the  contract  or  implied  from  the  nature  of  the  act  to 
be  done,  and  he  cannot  avail  himself  of  any  demand  at  any  other  time  or 
place ;  but  if  the  obligation  be  to  do  or  give  any  thing  that  may  as  well 
be  given,  or  done  at  one  time  and  place  as  at  another,  then  the  party 
failing  may  be  put  in  default  as  well  after,  as  at  the  time  the  obligation 


260  OF  CONVENTION'AL  OBLIGATIONS. 

becomes  due.     Promissory  notes  and  bills  of  exchange  are  not  governed 
by  this  rule,  but  by  those  of  commercial  law. 

18  L.  229;  3  A.  464  ;  See  1906. 

Art.  1900. — But  if  the  object,  contracted  to  be  given,  be  not  a  thing 
particularly  specified,  but  is  uncertain,  indeterminate  or  described  only 
by  quantity  or  number,  it  is  at  the  risk  of  the  creditor  only  from  the 
time  he  is  in  legal  default  for  not  receiving  the  thing  after  it^.has  been 
tendered.  A  contract  to  deliver  a  certain  mimbcr  of  bushels  af  wheat, 
to  pay  a  certain  sum  of  money,  or  to  ship  a  certain  number  of  hogshead? 
of  sugar,  without  further  identification,  comes  under  this  rule. 

Art.  1910. — There  is  an  exception  to  the  rule  established  in  the  last 
preceding  article ;  when  the  object  of  the  contract,  although  indetermi- 
nate in  itself,  makes  part  of  a  whole  that  is  determinate  and  certain,  and 
the  whole,  of  which  it  forms  a  part,  is  lost  or  destroyed  by  inevitable 
accident  before  delivery,  the  loss  will  fall  on  the  creditor  of  the  thing 
sold.  A  sale  of  ten  bales,  of  the  hundred  bales  of  cotton  in  a  particular 
store,  is  an  example  of  this  rule,  and  if  all  the  cotton  be  destroyed  by 
fire,  the  accident  will  discharge  the  seller  from  the  obligation  of  deliver- 
ing it. 

» 

Art.  1911. — In  the  case  provided  for  by  the  last  article,  it  must  ap- 
pear that  the  designation  of  the  mass,  from  which  the  particular  object 
of  the  contract  is  to  be  taken,  was  intended  by  the  parties  as  restrictive, 
that  is  to  say,  that  their  intention  was  confined  to  that  particular  pro- 
per t}'',  and  no  other  of  the  same  kind.  Where  such  intent  is  not  clearly 
expressed,  it  shall  be  presumed  that  no  such  restriction  was  intended ; 
and  the  thing  is  at  the  risk  of  the  debtor  until  delivery  or  default. 

Art.  1912. — Although  the  contract  contain  an  obligation  to  deliver, 
yet  if  it  be  one  that  does  not  purport  a  transfer  of  property,  the  thing  is 
always  at  the  risk  of  the  obligor,  provided  there  be  no  specific  agreement 
to  the  contrary. 

Art.  1913. — If  the  contract  be  complete,  and  be  one  that  purports  a 
transfer  of  property,  its  destruction  before  delivery  or  default  does  not 
exonerate  the  party  who  was  to  have  received  it,  from  the  performance 
or  delivery  of  that  which  on  his  part  was  intended  as  the  price  or  equiv- 
alent for  such  property. 

Art.  1914. — The  rule,  that  the  obligation  to  deliver  a  determinate 
object  is  perfect  by  the  mere  consent  of  the  parties,  and  that  the  obligee 
is  the  owner  from  the  time  of  such  contract,  is  without  any  exception  as 
i-espects  immovables,  not  only  between  the  parties,  but  as  to  all  the 
world,  provided  the  contract  be  clothed  with  the  formalities  req[uired 
by  law,  that  it  is  bona  fide,  and  purports  to  transfer  the  property. 

Sec  1903. 

Art.  1915. — In  cases,  however,  of  contracts,  which  purport  to  trans- 
fer immovable  property,  if  he  who  transfers  it  is  suffered  by  the  obligee 


261  OF  CONVENTIONAL  OBLIGATIONS.  26 1 

to  remain  in  corporal  possession  for  a  longer  time  than  is  reasonably  re- 
quired to  deliver  the  actual  possession  and  to  act  as  owner,  to  the  injury 
of  a  third  person,  who  may  afterwards  contract  with  him,  or  acquire 
rights  upon  his  property  as  creditor,  it  will  be  considered  as  a  mark  of 
fraud,  and  will  throw  the  burden  of  proving  that  the  contract  was  made 
hona  fide  upon  him  to  whom  the  property  was  transferred  by  the  first 
contract,  in  any  controversy  with  creditors  of  the  obligor  or  persons  ac- 
quiring bona  fide  intermediate  rights  by  contract  with  him. 

4  L.  340 ;  6  L.  53S ;  11  L.  27G ;  17  L.  859 ;  5  R.  18 ;  7  R.  434  ;  2  A.  26G,  012 ;  Sec  5  A.  1 ;  See  2456. 


Art.  19 IG. — "With  respect  to  personal  effects,  although,  by  the  rule 
referred  to  in  the  two  last  preceding  articles,  the  consent  to  transfer  vests 
the  property  in  the  obligee,  yet  this  effect  is  strictly  confined  to  the  par- 
ties until  actual  delivery  of  the  object.  If  the  vendor,  being  in  posses- 
sion, sliould,  by  a  second  contract,  transfer  tlie  property  to  another  per- 
son, who  gets  the  possession  before  the  first  obligee,  the  last  transferee  is 
considered  as  the  proprietor,  provided  the  contract  be  made  on  his  part 
bo7iafidc,  and  without  notice  of  the  former  contract. 

3  M.  222,269;  4M.  25;  5M.32;  7M.24;  9M.403:  12  L.  375;  1R.26;  3  R.  331 ;  12  R.  51 ;  1  A.59; 

See  2243. 

Art.  1917. — In  like  manner,  if  personal  property  be  transferred  by 
contract,  but  not  delivered,  it  is  liable  in  the  hands  of  the  obligor  to  seiz- 
ure and  attachment,  in  behalf  of  his  creditors. 

1  A.  59 ;  3  A.  402 ;  See  2243,  2456. 

Art.  1918. — "What  shall  be  considered  a  delivery  of  possession,  is  de- 
termined by  the  rules  of  law,  applicable  to  the  situation  and  nature  of 
the  property. 

8co  2243. 

Art.  1919. — If  the  contract  be  one  of  those  that  do  not  purport  to 
transfer  property,  but  only  to  give  a  right  to  the  temporary  enjoyment 
of  it,  the  right  to  that  enjoyment  vests  by  the  mere  consent  of  the  par- 
ties, in  the  same  manner  and  subject  to  the  same  rules  as  are  above  laid 
down  for  contracts  which  purport  to  transfer  the  property  itself. 


Section  III. — Of  the  Obligations  to  do  or  not  to  do. 

Art.  1920. — On  the  breach  of  any  obligation  to  do,  or  not  to  do,  the 
obligee  is  entitled  cither  to  damages,  or,  in  cases  which  permit  it,  to  a 
specific  performance  of  the  contract,  at  his  option,  or  he  may  require  the 
dissolution  of  the  contract,  and  in  all  these  cases  damages  may  be  given 
where  they  have  accrued,  according  to  the  rules  established  in  tin;  fol- 
lowing section. 

8  R.  157. 

Art.  1921. — In  ordinary  cases,  the  breach  of  such  a  contract  entitles 
the  party  aggrieved  only  to  damages,  but  where  this  would  be  an  iuade- 


262  OF  CONVENTIONAL  OBLIGATIONS. 

quate  compensation,  and  the  party  has  the  power  of  performing  the  con- 
tract, he  may  be  constrained  to  a  specific  performance  by  means  pre- 
scribed in  the  laws  which  regulate  the  practice  of  the  courts. 

Art.  1922. — The  obligee  may  require  that  any  thing  which  has  been 
done  in  violation  of  a  contract,  may  be  undone,  if  the  nature  of  the  case 
will  permit,  and  that  things  be  restored  to  the  situation  in  which  they 
were  before  the  act  complained  of  was  done,  and  the  court  may  order  this 
to  be  effected  by  its  officers,  or  authorize  the  injured  party  to  do  it  him- 
self at  the  expense  of  the  other,  and  may  also  add  damages,  if  the  justice 
of  the  case  require  it. 

Art.  1923. — If  the  obligation  be  not  to  do,  the  obligee  may  also  de> 
mand  that  the  obligor  be  restrained  from  doing  any  thing  in  contraven- 
tion of  it,  in  cases  where  he  proves  an  attempt  to  do  the  act  covenanted 
against. 

Section  IV. —  Of  the  Damages  resulting  from  the  Incxccntion  of  Obli- 
gations. 

Art.  1924. — The  obligations  of  contracts  extending  to  whatsoever  is 
incident  to  such  contracts,  the  party,  who  violates  them,  is  liable,  as  one 
of  the  incidents  of  his  obligations,  to  the  payment  of  the  damages,  which 
the  other  party  has  sustained  by  his  default. 

See  8  E.  227. 

Art.  1925. — A  contract  may  be  violated,  either  actively  by  doing 
something  inconsistent  with  the  obligation  it  has  proposed,  or  passively 
by  not  doing  what  was  covenanted  to  be  done,  or  not  doing  it  at  the 
time,  or  in  the  manner  stipulated  or  implied  from  the  nature  of  the  con- 
See  C  K.  216;  8  K.  22T;  9  R.  194;  12  E.  ITS. 

Art.  1 926. — When  there  is  an  active  violation  of  the  contract,  dam 
ages  are  due  from  the  moment  the  act  of  contravention  has  been  done,  and 
the  creditor  is  under  no  obligation  to  put  the  debtor  in  default,  in  order 
to  entitle  him  to  his  action. 

3  L.  40 ;  IE.  543.  * 

Art.  1927. — When  the  breach  has  been  passive  only,  damages  are 
due  from  the  time  that  the  debtor  has  been  put  in  default,  in  the  manner 
directed  in  this  chapter. 

The  rules  contained  in  this  and  the  preceding  articles,  however,  are 
subject  to  the  following  exceptions  and  modifications  :  ' 

6  N.  S.  231 ;  2  L.  9T ;  5  L.  415;  8  A.  444. 

1.  When  the  thing  to  be  given  or  done  by  the  contract  was  of  such 
a  nature,  that  it  could  only  be  given  or  done  within  a  certain  time, 
which  has  elapsed,  or  under  certain  circumstances  which  no  longer 
exist,  the  debtor  need  not  be  put  in  legal  delay  to  entitle  the  creditor  to 
damages ; 

2.  Where,  by  a  fortuitous  event  or  irresistible  force,  the  debtor  is 
hindered  from  giving  or  doing  what  he  has  contracted  to  give  or  do,  or 
is  from  the  same  causes  com2)elled  to  do  what  the  contract  bound  him 


263  OF  CONVENTIONAL  OBLIGATIONS.  263 

not  to  do,  no  damages  can  be  recovered  for  the  incxecution  of  the  con- 
tract ; 

3.  There  are  two  exceptions  to  the  last  rule  ;  first,  when  the  party 
in  default  has  by  his  contract  expressly  or  implicitly  undertaken  the 
risk  of  the  fortuitoiis  event,  or  of  the  irresistible  force  ;  secondly,  if  the 
fortuitous  event,  or  case  of  force,  Avas  preceded  by  some  fault  of  the 
debtor,  without  which  the  loss  Avould  not  have  happened  ; 

4.  Although  the  responsibility  of  the  debtor  for  the  object  he  was 
bound  to  deliver,  is  incurred  from  the  moment  he  is  put  in  default,  yet 
if  it  is  lost  by  some  fortuitous  event  or  irresistible  force,  by  which  it 
would  also  have  been  lost,  had  it  been  in  the  hands  of  the  creditor,  the 
debtor  is  not  answerable  for  the  value,  but  only  for  the  delay. 

2  A.  272. 

Art.  1928. — Where  the  object  of  the  contract  is  any  thing  but  the 
payment  of  money,  the  damages  due  to  the  creditor  for  its  breach  are  the 
amount  of  the  loss  he  has  sustained,  and  the  profit  of  which  he  has  been 
deprived,  under  the  following  exceptions  and  modificatious  : 

3  L.  82S ;  13  L.  404 ;  3  A.  140,  149,  464,  54S,  CTl ;  6  A.  491. 

1.  When  the  debtor  has  been  guilty  of  no  fraud  or  bad  faith,  he  is 
liable  only  for  such  damages  as  were  contemplated,  or  may  reasonably 
be  supposed  to  have  entered  into  the  contemplation  of  the  parties  at  the 
time  of  the  contract.  By  bad  faith  in  this  and  the  next  rule  is  not 
meant  the  mere  breach  of  faith  in  not  complying  with  the  contract,  but 
a  designed  breach  of  it  from  some  motive  of  interest  or  ill  will ; 

2.  When  the  incxecution  of  the  contract  has  proceeded  from  fraud 
or  bad  faith,  the  debtor  shall  not  only  be  liable  to  such  damages  as  were, 
or  might  have  been  foreseen  at  the  time  of  making  the  contract,  but  also 
to  such  as  are  the  immediate  and  direct  consequence  of  the  breach  of 
that  contract ;  but  even  when  there  is  fraud,  the  damages  cannot  exceed 
this; 

8  A.  140,  149  ;  4  A.  79. 

3.  Although  the  general  rule  is,  that  damages  are  the  amount  of  tlie 
loss  the  creditor  has  sustained,  or  of  the  gain  of  which  he  has  been  de- 
prived, yet  there  are  cases  in  which  damages  may  be  assessed  without 
calculating  altogether  on  the  pecuniary  loss,  or  the  privation  of  pecuni- 
ary gain  to  the  party.  Where  the  contract  has  for  its  object  the  grati- 
fication of  some  intellectual  enjoyment,  whether  in  religion,  morality,  or 
taste,  or  some  convenience  or  other  legal  gratification,  although  these 
arc  not  appreciated  in  money  by  the  parties,  yet  damages  arc  due  for 
their  breach :  a  contract  for  a  religious  or  charitable  foundation,  a  pro- 
mise of  marriage,  or  an  engagement  for  a  work  of  some  of  the  fine  arts, 
are  objects  and  examples  of  this  rule. 

In  the  assessment  of  damages  under  this  rule,  as  well  as  in  cases  of 
offences,  quasi  off"ences,  and  quasi  contracts,  much  discretion  must  bo 


264  OF  CONVENTIONAL  OBLIGATIONS. 

left  to  the  judge  or  jury,  while  in  other  cases  they  have  none,  but  are 
hound  to  give  such  damages  under  the  above  rules  as  will  indemnify  the 
creditors,  whenever  the  contract  has  been  broken  by  the  fault,  negligence.' 
fraud  or  bad  faith  of  the  debtor ; 

16  L.  S94 ;  5  E.  116 ;  8  E.  51 ;  9  E.  307 ;  12  E.  20  ;  5  A.  316 ;  4  A.  440 ;  V.  2294. 

4.  If  the  creditor  be  guilty  of  any  bad  faith,  which  retards  or  pre- 
vents the  execution  of  the  contract,  or  if,  at  the  time  of  making  it,  he 
knew  of  any  facts  that  must  prevent  or  dehay  its  performance,  and  con 
cealed  them  from  the  debtor,  he  is  not  entitled  to  damages ; 

3  A.  54S. 

5.  Where  the  parties,  by  their  contract,  have  determined  the  sum 
that  shall  be  paid  as  damages  for  its  breach,  the  creditor  must  recover 
that  sum,  but  is  not  entitled  to  more.  But  when  the  contract  is  exe- 
cuted in  part,  the  damages  agreed  on  by  the  parties  may  be  reduced  to  the 
loss  really  suffered,  and  the  gain  of  which  the  party  has  been  deprived, 
unless  there  has  been  an  express  agi-eement  that  the  sum  fixed  by  the 
contract  shall  be  paid,  even  on  a  partial  breach  of  the  agreement. 

5  A.  821 ;  See  0  E.  216 ;  5  A.  018 

Art.  1929. — The  damages  due  for  delay  in  the  performance  of  an 
obligation  to  pay  money,  are  called  interest.  The  creditor  is  entitled  to 
these  damages  without  proving  any  loss,  and  whatever  loss  he  may  have 
suffered  he  can  recover  no  more. 

7  L.  192 ;  15  L.  371 ;  3  A.  548 ;  5  A.  618. 

Art.  1930. — Interest  is  of  two  kinds,  conventional  and  legal;  the 
rate  of  both  is  fixed  by  law  in  the  chapter  on  loans  on  interest. 

1  A.  265. 

Art.  1931. — In  contracts  stipulating  a  conventional  interest,  it  is 
due  without  any  demand,  from  the  time  stipulated  for  its  commence- 
ment until  the  principal  is  paid. 

7L.  482,  565;  1  A.  265. 

Art.  1932. — In  contracts  which  do  not  stipulate  for  the  payment  of 
interest,  it  is  due  from  the  time  the  debtor  is  put  in  default  for  the 
payment  of  the  principal,  and  is  to  be  calculated  on  whatsoever  sum  shall 
be  found  by  the  judgment  to  have  been  due  at  the  time  of  the  default. 

Stat.  9th  March,  1852,  p.  95. — All  debts  shall  bear  interest  at  the 
rate  of  five  per  cent,  per  annum  from  the  time  they  become  due,  unless 
otherwise  stipulated. 

19  L.  431,  520 ;  8  E.  13 ;  1  A.  265 ;  2  A.  363 ;  3  A.  338. 

Art.  1933, — When  the  sum  is  due  for  property  yielding  a  revenue, 
interest  is  due  from  the  time  the  principal  is  payable,  without  any  de- 
mand. 

1  A.  140. 

Art.  1934. — Interest  upon  interest  cannot  be  recovered,  unless  it  be 


265  OF  CON-VENTIONAL  OBLIGATIONS.  265 

added  to  the  principal,  and  by  another  contract  made  a  new  debt.     No 
stipulation  to  that  eifect  in  the  original  contract  is  valid. 

3  L.  430 ;  2  A.  241 ;  4  A.  206 ;  5  A.  61S. 

Art.  1935. — In  cases  where  no  conventional  interest  is  stipulated, 
the  legal  interest,  at  the  time  the  defendant  was  put  in  default,  shall  be 
recovered,  although  the  rate  may  have  been  subsequently  changed  by 
law. 

Art.  1936. — The  surety,  who  is  obliged  to  pay  money  for  his  prin- 
cipal, is  not  bound  by  the  preceding  rule  respecting  interest  on  interest: 
he  shall  receive  interest  on  the  whole  sum  he  has  paid,  whether  for  prin- 
cipal or  interest  from  the  time  of  the  payment,  without  any  demand. 

6  L.  762. 

Art.  1937. — The  interest  on  loans,  on  bottomry  and  respondentia, 
may  also  exceed  the  rate  of  legal  or  conventional  interest. 

Art.  1938. — The  debtor  is  liable  only  to  such  damages  as  were  fore- 
seen, or  might  have  been  foreseen  at  the  time  of  contracting,  when  it  is 
not  owing  to  his  fraud,  that  the  obligation  has  not  been  executed. 

Art.  1939. — Sums,  which  arc  due  for  yearly  rents,  for  annuities, 
either  forever  or  for  life,  bear  interest  from  the  day  the  debtor  was  in 
default,  either  by  the  terms  of  his  agreement  or  otlierwise.  The  same 
rule  applies  to  sums  due  for  the  restitution  of  profits,  or  for  interest 
paid  by  a  third  person  in  discharge  of  the  debtor. 


Section  V. —  Of  the  Interpretation  nf  Agreements. 

Art.  1940. — Legal  agreements  having  the  effects  of  law  upon  the 
parties,  none  but  the  parties  can  abrogate  or  modify  them.  Upon  this 
principle  are  established  the  following  rules  : 

11  L.  72. 

I 

1.  That  no  general  or  special  legislative  act  can  be  so  construed  as 
to  avoid  or  modify  a  legal  contract,  previously  made ; 

2.  That  courts  are  bound  to  give  legal  effect  to  all  such  contracts, 
according  to  the  true  intent  of  all  the  parties  ; 

3.  That  the  intent  is  to  be  determined  by  the  words  of  the  contract, 
when  these  are  clear  and  explicit,  and  lead  to  no  absurd  conseipence  ; 

2  A.  16S. 

4.  That  it  is  the  common  intent  of  the  parties,  that  is,  the  interest 
of  all,  that  is  to  be  sought  for  ;  if  there  was  a  difference  in  this  intent, 
there  was  no  common  consent,  and  consequently  no  contract. 

1  A.  85,  232;  See  12  R.  31. 

All  the  articles  of  this  section  contain  rules  established  by  law  for 
discovering  the  intent,  when  either  the  words  of  the  agreement  are  am- 
biguous, or  circumstances  render  it  doubtful.  They  apply  as  well  to 
verbal  as  to  written  anrreements. 


266  OF  CGNVENTIONAL  OBLIGATIONS. 

Art.  1941. — The  words  of  a  contract  are  to  be  understood,  like 
those  of  a  law,  in  the  common  and  usual  signification,  without  attending 
so  much  to  grammatical  rules,  as  to  general  and  popular  use. 

Art.  194:2. — Terms  of  art  or  technical  phrases  are  to  be  interpreted 
according  to  their  received  meaning  with  those  who  profess  the  art  or 
profession  to  which  they  belong. 

1  A.  35 ;  2  A.  16S. 

Art.  1943. — When  there  is  a  doubt  as  to  the  true  sense  of  the  words 
of  a  contract,  they  may  be  explained  by  referring  to  other  words  or 
phrases  used  in  making  the  same  contract. 

Sec  12  K.  31. 

Art.  1944. — When  there  is  any  thing  doubtful  in  one  contract,  it 
may  be  explained  by  referring  to  other  contracts  or  agreements  made  on 
the  same  subject  between  the  same  parties,  before  or  after  the  agree- 
ment in  question. 

Art.  1945. — When  there  is  any  thing  doubtful  in  agreements,  we 
must  endeavor  to  ascertain  what  was  the  common  intention  of  the  par- 
ties, rather  than  to  adhere  to  the  literal  sense  of  the  terms. 

10  E.  365;  12  R.  31, 16T. 

Art.  1946. — When  a  clause  is  susceptible  of  two  intex-pretations,  it 
must  be  understood  in  that  in  which  it  may  have  some  effect,  rather 
than  in  a  sense  which  would  render  it  nugatory. 

Art.  1947. — Terms,  that  present  two  meanings,  must  be  taken  in 
the  sense  most  congruous  to  the  matter  of  the  contract. 

10  E.  365. 

Art.  1948.— Whatever  is  ambiguous,  is  determined  according  to 
the  usage  of  the  country  where  the  contract  is  made. 

Art.  1949. — In  contracts,  the  clauses  in  common  use  must  be  sup- 
plied, though  they  be  not  expressed. 

Art.  1950. — All  clauses  of  agreements  are  interpreted  the  one  hy 
the  other,  giving  to  each  the  sense  that  results  from  the  entire  act. 

See  12  E.  31. 

Art.  1951. — When  the  intent  of  the  parties  is  doubtful,  the  con- 
struction put  upon  it  by  the  manner  in  which  it  has  been  executed  by 
both,  or  by  one  with  the  express  or  implied  assent  of  the  other,  fur- 
nishes a  rule  for  its  interpretatioii. 

1  L.  260 ;  12  L.  546 ;  3  E.  ITl ;  12  E.  167 ;  1  A.  232 ;  2  A.  249,  475 ;  3  A.  663 ;  4  A.  441 ;  See  6  E.  378. 

Art.  1952.—  In  a  doubtful  case,  the  agreement  is  interpreted 
against  him  who  has  contracted  the  obligation. 

C  L.  191 ;  3  E.  171 ;  1  A.  391 ;  2  A.  249 ;  3  A.  224 ;  6  A.  204.  ■* 

Art.  1953. — But  if  the  doubt  or  obscurity  arise  for  the  want  of  ne 
cessary  explanation,  which  one  of  the  parties  ought  to  have  given,  or 
from  any  other  negligence  or  fault  of  his,  the  construction  most  favor- 
able to  the  other  party  shall  be  adopted,  whether  he  be  obligor  or  obli- 
gee. 

6  A.  204;  See  10  E.  52. 

Art.  1954. — However  general  be  the  terms  in  which  a  contract  is 
couched,  it  extends  only  to  the  things,  concerning  which  it  appears  that 
the  parties  intended  to  contract. 


267  OF  CONVENTIONAL  OBLIGATIONS.  26? 

Art.  1955. — But  when  .the  object  of  the  contract  is  an  aggregate, 
composed  of  many  or  of  diiFerent  articles,  there  the  general  description 
or  aggregate  name  will  include  all  the  particular  articles  which  enter 
into  the  composition  of  the  whole,  although  they  were  not  specified,  or 
were  even  unknown  to  both  or  either  of  the  parties.  A  release  of  a 
share  in  a  succession,  under  this  rule,  shall  not  be  set  aside  on  an  alle- 
gation that  the  succession  contained  more  or  less  tliau  was  supposed ; 
where  there  is  concealment,  however,  or  fraud,  it  would  be  void  under 
other  rules  before  laid  down. 

Art.  I95G. — The  rule,  laid  down  in  the  last  article,  must  also  bo 
taken  with  the  further  modification  that,  although  the  aggregate  appella- 
tion or  description  be  used,  yet,  if  by  some  other  part  of  the  contract,  it 
appears  that  the  intent  of  tlie  parties  was  not  to  include  the  whole,  but 
only  that  part  of  which  they  had  notice,  such  evident  intent  shall  cor- 
rect the  universality  of  tlic  description.  Thus,  in  a  release  of  a  whole 
share  in  a  succession,  if  there  be  a  reference  to  an  inventory  as  descrip- 
tive of  what  that  share  is,  the  contract,  notwithstanding  the  general 
terms,  shall  be  confined  to  what  is  contained  in  the  inventory. 

Art.  1957. — When  a  contract  contains  general  obligations,  and  the 
parties,  in  order  to  avoid  a  doubt  whether  a  particular  case  comes  with- 
in the  scope  of  the  agreement,  have  made  special  provision  for  such 
case,  the  general  terms  of  the  contract  shall  not,  on  this  account,  be  re- 
stricted to  the  single  case  that  is  provided  for. 


Section  VI. — Of  the  Obligations  to  Perform,  as  hicidents  to  a  Con- 
tract, all  that  is  required  by  Equity,  Usage,  or  Law. 

Art.  1958. — When  the  intent  of  the  parties  is  evident  and  lawful, 
neither  equity  nor  usage  can  be  resorted  to,  in  order  to  enlarge  or  re- 
strain that  intent,  nor  can  any  law  operate  to  that  effect,  unless  it  be 
some  prohibition  or  other  provision,  which  the  parties  Jiad  no  right  to 
modify  or  renounce. 

Art.  1959. — Equity,  usage,  and  law  supply  such  incitlents  only  as 
the  parties  may  reasonably  be  supposed  to  have  been  silent  upon  from  a 
knowledge  that  they  would  be  supplied  from  one  of  these  sources. 

Art.  1960. — The  equity  intended  by  this  rule  is  founded  in  the 
Christian  principle  not  to  do  unto  others  tliat  which  we  would  not  wish 
others  should  do  unto  us,  and  on  the  moral  maxim  of  the  law  that  no 
one  ought  to  enrich  himself  at  the  expense  of  another.  Wlien  tlie  law 
of  the  land,  and  that  which  the  parties  have  made  for  tlicmselves  by 
their  contract,  are  silent,  courts  must  apply  these  principles  to  deter- 
mine what  ought  to  be  incidents  to  a  contract,  which  arc  re(j[uired  by 
equity. 

3  A.  203,  32G;  4  A.  1-15;  Sec  12  L.  546;  1  A.  197;  See  1SS5,  ISSO. 

Art.  19GI. — By  the  word  usage,  mentioned  iu  the  preceding  arti* 


26S  OF  COlfVENTlONAL  OBLIGATIONS. 

cles,  is  meant  that  which  is  generally  practised  in  affairs  of  the  same 
nature  with  that  which  forms  the  subject  of  the  contract. 

House  rent  in  some  cities  is  generally  paid  by  the  month,  in  others 
by  the  quarter.  In  a  contract  for  the  hire  of  a  house,  without  express- 
ing when  the  rent  was  to  be  paid,  the  deficiency  would  be  supplied  by 
proof  of  the  usage,  but  if  a  contrary  intent  appear  in  the  contract,  the 
usage  would  not  contravene  it. 

See  8  M.  809 ;  1  N.  S.  192  ;  7  L.  211,  524;  18  L.  3S0  ;  4  K.  8S1  ;  See  26S6. 

Art.  1962. — The  law^  intended  by  the  rule  before  referred  to,  means 
such  legislative  provisions  as  provide  for  these  cases  in  which  the  par- 
ties have  not  declared  their  intention.  When  the  contracting  parties 
have  not  derogated  from  such  law,  its  provisions  are  to  be  followed. 
The  laws  directing  a  community  of  matrimonial  gains  and  a  warranty 
on  sales,  are  examples  of  this  kind  of  legislative  provision,  which  take 
effect  and  regulate  the  contract  when  the  parties  make  no  agreement 
that  contravenes  them. 


Section  VII. —  What  Contracts  shall  be  avoided  by  Persons  not  Parties 

to  them. 

Art.  1963. — Contracts,  considered  with  respect  to  their  operation 
on  property,  either  purport  to  transfer,  or  to  give  some  determinate 
right  upon  it.  A  sale  or  exchange  is  an  example  of  the  first,  a  pledge 
or  mortgage  of  the  second  of  these  species  of  contracts.  There  is  a 
third  right  implied  in  all  obligations,  to  wit :  That  the  property  of  the 
debtor  shall  be  liable  for  all  consequences  attending  their  non-perform- 
ance ;  but  this  right  cannot  be  exercised,  unless  the  contract  be  broken, 
nor  until  judgment  be  obtained  for  the  recovery  of  what  is  due  in  conse- 
quence of  its  breach. 

6  L  S3;  11  L.  424:  16  L.  363;  11  K.  190;   See2L.54.3;  lA.  132,  262;   3  A.  62T;  4  A.  36;  5  A.  400; 

See  19S9. 

Art.  1964. — From  the  principle,  established  by  the  last  preceding 
article,  it  results  that  every  act  done  by  a  debtor  with  the  intent  of 
depriving  his  creditor  of  the  eventual  right  he  has  upon  the  property  of 
such  debtor,  is  illegal,  and  ought,  as  respects  such  creditor,  to  be  avoided. 
This  can  be  done  in  the  mode  and  under  the  circumstances  set  forth  in 
the  following  rules. 

9  L.  855 ;  11  L.  530 ;  16  L.  869 ;  11  E.  190 ;  See  11  L.  464. 


§  1. —  Of  the  Action  of  the  Creditors  in  Avoidance  of  Contracts^  and  its  Incidents. 

Art.  1965. — The  law  gives  to  every  creditor,  when  there  is  no 
cession  of  goods  as  well  as  to  the  representatives  of  all  the  creditors 
where  there  is  any  such  cession,  or  other  proceedings  by  which  they  are 
collectively  represented,  an  action  to  annul  any  contract  made  in  fraud 
of  their  rights. 

I  L.  500  2  L.  10, 19 ;  9  L.  355;  11  L.  521 ;  4  L.  841 ;  10  L.  106  ;  16  L.  809,  559 ;  17  L.  253 ;  4  A  309 
865 ;  See  8  L.  461 ;  13  L.  339;  4  A.  3C5. 


269  OF  CONVENTIONAL  OBLIGATIONS.  269 

Art.  1966. — This  action  can  only  be  exercised,  wlien  the  debtor  has 
not  property  sufficieut  to  pay  the  debt  of  the  complaining  ci-editor,  or  of 
all  his  creditors  where  there  has  been  a  cession,  or  any  proceeding  analo- 
gous thereto. 

1  L.  500. 

Art.  1967. — It  cannot  be  exercised  by  individual  creditors,  until 
their  debts  are  liquidated  by  a  judgment,  unless  the  defendant  in  such 
action  be  made  party  to  the  suit  for  liquidating  the  debt  brought  against 
the  original  debtor  in  the  manner  hereinafter  directed. 

1  E.  525 ;  10  R.  3ST ;  4  A.  135 ;  5  A.  401 ;  See  1  L.  500  ;  12  L.  197 ;  10  R.  899. 

Art.  1968. — The  defendant  in  such  action  may  demand  a  discussion 
of  the  property  belonging  to  the  original  debtor,  before  any  judgment 
shall  be  pronounced  in  the  suit  to  avoid  the  contract,  and  on  his  pointing 
out  and  proving  the  existence  of  such  property  situate  within  tliis  State 
and  the  title  to  which  is  not  in  dispute,  the  suit  against  him  shall  be 
staid  until  such  property  shall  be  discussed,  and  if  the  result  of  this 
discussion  be  that  the  property  pointed  out  is  not  applicable  to  the  pay- 
ment of  the  plaintiff,  the  defendant  shall  bear  all  the  expenses  of  the 
same. 

4  L.  329;  See  1  L.  500;  12  R.  141. 

Art.  1969. — If,  during  the  pendency  of  the  action  given  by  this 
section,  the  original  debtor  discharges  the  debt  due  to  the  plaintiff  or 
acquires  the  property  applicable  to  its  payment  and  sufficient  in  amount, 
such  action  can  no  longer  be  sustained,  it  being  the  true  intent  of  the 
law  that  a  contract  avoidable  by  creditors  under  this  section,  cr.nnot  on 
that  account  be  avoided  by  either  of  the  parties. 

Art.  1970. — The  plaintiff'  in  the  action  given  in  this  section  may 
join  the  suit  for  annulling  the  contract  to  that  which  he  brings  against 
the  original  debtor  for  liquidating  his  debt  by  a  judgment,  and  in  such 
suit  either  of  the  defendants  may  controvert  the  demand  of  the  plaintiff. 

1  L.  500,  503;  1  R.  525 ;  10  E.  399  ;  See  15  I*  470 ;  10  R.  3S7. 

Art.  1971. — When  the  defendant  in  the  action  given  by  this  section 
has  not  been  made  party  to  the  suit  against  the  original  debtor,  he  may 
controvert  the  demand  of  the  plaintiff,  although  it  be  licpiidated  by  a 
judgment,  in  the  same  manner  that  the  debtor  might  have  done  before 
the  judgment. 

1  E.  525  ;  10  E.  8S7,  399 ;  2  A.  544 ;  4  A.  135 ;  See  12  L.  200. 

Art.  1972. — The  judgment  in  this  action,  if  maintained,  shall  be 
that  the  contract  be  avoided  as  to  its  effects  on  the  complaining  creditors, 
and  that  all  the  property  or  money  taken  from  the  original  debtor's 
estate,  by  virtue  thereof,  or  the  value  of  such  property  to  the  amount 
of  the  debt,  be  applied  to  the  payment  of  the  plaintiffs. 

6L.  540;  17L.  258,  559;  16L.  1«;  9  E.  231 ;  10  E.  399;  2  A.  14;  6  A.  552. 


.  §  2. —  What  Contracts  shall  be  avoided  by  this  Action. 

Art.  1973. — No  contract  shall  be  avoided  by  tliis  action  but  such 
as  arc  made  in  fraud  of  creditors,  and  such  as,  if  carried  into  execution, 


270  OF  COXVENTTONAL  OBLIGATIONS. 

would  have  tlie  effect  of  defrauding  tliem.  If  made  in  good  faith,  it 
cannot  be  annulled,  although  it  prove  injurious  to  the  creditors,  and 
although  made  in  bad  faith,  it  cannot  be  rescinded,  unless  it  operate  to 
their  injur j\ 

9  L.  355 :  10  L.  345,  348 ;  16  L.  145, 150,  863 ;  19  L.  600 ;  1  K.  527 ;  2  E.  3S,  99  ;  4  R.  408 ;  11  Pw.  190, 
493,  533;  See  4  L.  250;  12  K.  141. 

Art.  1974. — If  the  contract  be  onerous,  and  the  original  debtor 
made  it  with  intent  to  defraud  his  creditors,  but  the  person,  with  whom 
he  contracted,  was  in  good  foith,  the  contract  cannot  be  annulled,  except 
under  the  circumstances  and  in  the  manner  hereinafter  provided. 

10  L.  345,  348 ;  16  L.  150 ;  19  L.  600. 

Art.  1975. — If  the  contract  be  purely  gratuitous,  it  shall  be  pre- 
sumed to  have  been  made  in  fraud  of  creditors,  if,  at  the  time  of  making 
it,  the  debtor  had  not  over  and  above  the  amount  of  his  debts,  more 
than  twice  the  amount  of  the  property  passed  by  such  gratuitous  con- 
tract. 

16  L.  150 ;  See  10  L.  369. 

Art.  1976. — If  the  contract  be  onerous,  but  made  in  fraud  on  the 
part  of  the  debtor,  but  in  good  faith  on  the  part  of  the  person  with  whom 
he  contracted,  if  the  value  of  the  property  transferred  by  such  contract 
exceed  by  one-fifth  the  price  or  consideration  given  for  it,  the  creditors 
may  annul  the  contract,  and  take  back  tlie  property  on  paying  the  price 
or  the  value  of  the  consideration  with  interest,  but  in  this  case  they 
shall  not  receive  the  fruits. 

7L.  311;  10  L.  145. 

Art.  1977. — If  the  party,  with  whom  the  debtor  contracted,  be  in 
fraud  as  well  as  the  debtor,  he  shall  not,  on  the  annulling  the  contract, 
be  entitled  to  a  restitution  of  the  price  or  consideration  he  may  have 
paid,  except  for  so  much  as  he  shall  prove  has  inured  to  the  benefit  of 
the  creditors  by  adding  to  the  amount  of  property  applicable  to  the  pay- 
ment of  their  debts  ;  but  if  the  only  consideration  be  a  sum  due  from 
such  debtor  to  the  part}^  with  whom  he  contracted,  then  the  only  resti- 
tution to  be  made  is  the  placing  the  parties  in  the  situation  in  which 
they  were  before  the  contract  complained  of  was  made. 

6L.  S3;  HE.  190;  2  A.  14. 

Art.  1978. — But  if  such  fraud  consisted  merely  in  the  endeavor  to 
obtain  a  preference  over  other  creditors,  for  the  securing  or  payment  of 
a  just  debt,  under  circumstances  in  which  by  law  the  endeavor  to 
obtain  such  preference  is  declared  to  be  a  constructive  fraud,  in  such 
case  the  party  shall  only  lose  the  advantage  endeavored  to  be  secured 
by  such  contract,  and  shall  be  reimbursed  what  he  may  have  given  or 
paid,  but  without  interest ;  and  he  shall  restore  all  advantages  he  has 
received  from  the  transaction. 

3L.  284;  4L.  S3;  6  A.  652. 

Art.  1979. — Every  contract  shall  be  deemed  to  have  been  made  in 
fraud  of  creditors,  when  the  obligee  knew  that  the  obligor  was  in  insol- 
vent circumstances,  and  when  such  contract  gives  to  the  obligee,  if  he  be 
a  creditor,  any  advantage  over  other  creditors  of  the  obligor. 

4  L.  254 ;  6  L.  83 ;  10  L.  363 ;  2  E.  88,  99 ;  4  E.  488 ;  5  E.  288 ;  See  12  E.  141 ;  See  1973. 


271  OF  CONVENTIONAL  OBLIGATIONS.  27. 

Art.  1980. — By  being  in  insolvent  circumstances  is  meant,  that  the 
whole  property  and  credits  are  not  eqnal  in  amount,  at  a  fair  appraise- 
ment, to  the  debts  due  by  the  party.  And  if  he,  who  alleges  the  insol- 
vency, shows  the  amount  of  debts,  it  is  incumbent  on  the  other  party  to 
show  property  to  an  equal  or  greater  amount.  To  prove  the  state  of 
his  affairs  at  the  period  of  the  contract,  tlie  debtor  may,  at  the  option 
of  the  plaintiff,  be  examined  as  a  witness  in  the  action  for  annulling  tho 
contract. 

4  L.  254 ;  3  R.  106,  407 ;  4  R.  43S  ;  5  A.  400 ;  See  12  R.  141. 

Art.  1981. — No  sale  of  property,  or  other  contract  made  in  the 
usual  course  of  the  party's  business,  n"or  any  payment  of  a  just  debt  in 
money,  shall  be  affected  by  virtue  of  any  provision  in  this  section, 
although  the  party  was  in  insolvent  circumstances,  and  the  person  with 
whom  he  contracted,  or  to  whom  he  made  the  payment,  knew  of  such 
insolvency. 

4  L.  841 ;  19  L.  594;  4  R.  43S;  See  6  L.  345. 

Art.  1982. — No  contract  made  between  the  debtor  and  one  of  his 
creditors  for  the  purpose  of  securing  a  just  debt,  shall  be  set  aside  under 
this  section,  although  the  debtor  were  insolvent  to  the  knowledge  of  the 
creditor  with  whom  he  contracted,  and  although  the  other  creditors  are 
injured  thereby,  if  such  contract  were  made  juore  than  one  year  before 
bringing  the  suit  to  avoid  it,  and  if  it  contain  no  other  cause  of  nullity 
than  the  preference  given  to  one  creditor  over  another. 

3  L.  2G ;  4  L.  260 ;  S  L.  SOS ;  9  L.  106 ;  11  L.  424,  532 ;  14  L.  SOS,  322 ;  16  L.  103,  375 ;  19  L.  600 ;  1  R. 
485;  2  R.  277;  4R.  408,  43S;  5R.  2S8;  6  R.  142;  9  R.  267;  11  R.  293;  2  A.  659 ;  3  A.  248;  4  A.  65: 

See  3  L.  274. 

Act.  1983. — If  a  debtor,  in  insolvent  circumstances,  shall  anticipate 
the  payment  of  a  debt  not  yet  payable,  and  shall,  to  the  injury  of  the 
creditors  whose  debts  were  either  then  due,  or  would  fall  due  before 
that  of  which  he  anticipated  the  payment,  this  shall  be  deemed  to  have 
been  done  in  fraud  of  the  creditors,  and  the  creditor  so  preferred  shall 
be  obliged  to  share  the  loss  ratably  with  the  complaining  creditors, 
each  creditor,  however,  preserving  the  right  of  mortgage  or  privilege,  if 
any,  which  his  original  debt  gave  him  by  law. 

Art.  1984. — Not  only  contracts  which  dispose  of  property,  but  all 
others  which  are  made  in  fraud  of  creditors,  and  deprive  them  of  their 
recourse  to  the  property  of  their  debtor,  come  within  the  provisions  of 
this  section.  The  renunciation  of  a  succession  or  other  right  to  prop- 
erty, the  release  of  a  debt  without  payment,  or  any  other  act  of  this 
kind,  may  be  avoided  by  creditors,  when  done  to  their  prejudice,  under 
the  rules  above  established. 

19  L.  431 ;  1  R.  20 ;  4  R.  438 ;  8  R.  13 ;  1  A.  265 ;  2  A.  368  ;  3  A.  338 ;  See  7  L.  509. 

Art.  1985. — In  case  the  debtor  refuse  or  neglect  to  accept  an  in- 
heritance to  the  prejudice  of  his  creditors,  they  may  accept  the  same, 
and  exercise  all  his  rights  in  the  manner  provided  for  in  the  title  of 
successions,  and  they  are  authorized,  by  virtue  of  the  action  given  by 


272  OF  CONVENTIONAL  OBLIGATIONS. 

this  section,  to  exercise  all  the  rights  which  the  debtor  could  do  for 
recovering  possession  of  the  property  to  which  he  is  entitled,  in  order  to 
make  the  same  available  to  the  payment  of  their  debts. 

11  E.  314. 

Art.  1986. — There  are  rights  of  the  debtor,  however,  which  the 
creditors  cannot  exercise,  even  should  he  refuse  to  avail  himself  of  them. 

They  cannot  require  the  separation  of  property  between  husband 
and  wife,  nor  can  they  oblige  their  debtor  to  accept  a  donation  inter 
vivos  made  to  him,  nor  can  they  accept  it  in  his  stead.  Neither  can 
they  call  on  a  co-heir  of  the  debtor  to  collate,  when  such  debtor  has  not 
exercised  that  right. 

2A.  S43. 

Art.  1987. — There  are  also  rights  which  are  merely  personal,  that 
cannot  be  made  liable  to  the  payment  of  debts,  and  therefore  no  contract 
respecting  them  comes  within  the  provision  of  this  section ;  these  are 
the  rights  of  personal  servitude,  of  use  and  habitation,  of  usufruct  to 
the  estate  of  a  minor  child,  to  the  income  of  dotal  property,  to  money 
due  for  the  salary  of  an  office,  or  wages,  or  recompense  for  personal 
services. 

1  E.  399,  435;  4  K.  340 ;  2  A.  843 ;  4  A.  307;  See  C.  P.  G4T. 

Art.  1988. — No  creditor  can,  by  the  action  given  by  this  section, 
sue  individually  to  annul  any  contract  made  before  the  time  his  debt 
accrued. 

5N.S.9C,634;   2  L.  543 ;  4  L.  142,  261 ;   5L.126;   6  L.  540;  12  L.  201 ;   1TL.3G0;  IE.  435;  1  A. 

132 ;  6  A.  89. 

Art.  1989. — The  action,  given  by  this  section,  is  limited  to  one 
year :  if  brought  by  a  creditor  individi\ally,  to  be  counted  from  the 
time  he  has  obtained  judgment  against  the  debtor ;  if  brought  by  syn- 
dics or  other  representatives  of  the  creditors  collectively,  to  be  counted 
from  the  day  of  their  appointment. 

4L.  260;  8L.  308;  9L.  107;  11  L.  346,  424.  532 ;  14  L.  322;  IfiL.  106,  3T0;  19  L.  594;  IR.  435; 

2  E.  277,408,438;  4  E.  395, 436;  5E.238;  6R.  142;  9E.  518;  lOR.  74;  HE.  314;  1  A.  132, 262, 440 ; 

2  A.  4S3,  659 ;  3  A.  248,  627 ;  4  A.  36,  C5,  329 ;  5  A.  400 ;  See  8  N.  S.  675 ;  3  L.  26,  29 ;  See  19S2. 


CHAPTER  IV. 

OF    THE    DIFFERENT    KINDS    OF    OBLIGATIONS. 

Section  I. —  General  Division  of  the  Subject. 

Art.  1990. — The  preceding  chapters  of  this  title  have  established 
rules  applicable  to  contracts  in  general :  this  contains  an  enumeration 
of  such  obligations  as  are  usually  inserted  in  different  contracts,  and  the 
following  chapters  show  how  they  may  be  formed,  proved  and  extin- 
guished. Subsequent  titles  enumerate  the  different  kinds  of  contracts 
into  which  the  general  obligations  may  enter,  and  provides  rules  for 
their  government. 

Art.  1991. — Independent  of  the  division  of  obligations  contained  m 


273  OF  CONVENTIONAL  OBLIGATIONS.  273 

the  first  cliapter  of  this  title,  those,  that  'usually  enter  into  particular 
contracts,  may  be  further  distinguished  by  the  following  classification  : 

Those  which  are  strictly  personal,  or  heritable,  or  real ; 

Simple  or  conditional ; 

Limited  or  unlimited  as  to  the  time  of  performance ; 

Disjunctive  or  alternative ; 

In  relations  to  the  parties,  joint,  several,  or  in  solido  j 

In  their  nature,  divisible  or  indivisible  ; 

As  to  their  form,  penal  or  not  penal. 

Each  of  these  divisions  forms  the  subject  of  a  difi"erent  section  of 
this  chapter. 


Section  II. —  Of  strictly  Personal,  Heritable^  and  Real  Obligations. 

Art.  1992. — An  obligation  is  strictly  personal,  when  none  but  the 
obligee  can  enforce  the  performance,  or  when  it  can  be  enforced  only 
against  the  obligor. 

It  is  heritable,  when  the  heirs  and  assigns  of  the  one  party  may  en- 
force the  performance  against  the  heirs  of  the  other. 

It  is  real,  when  it  is  attached  to  real  property,  and  passes  with  it 
into  whatever  hands  it  ma/ come,  without  making  the  third  possessor 
personally  responsible. 

Art.  1993. — An  obligation  may  be  personal  as  to  the  obligee,  and 
heritable  as  to  the  obligor,  and  it  may  in  like  manner  be  heritable  as  to 
the  obligee,  and  personal  as  to  the  obligor. 

Art.  1994. — Every  obligation  shall  be  deemed  to  be  heritable  as  to 
both  parties,  unless  the  contrary  be  specially  expressed,  or  necessarily 
implied  from  the  nature  of  the  contract. 

See  6  L.  102. 

Art.  1995. — The  obligation  shall  be  presumed  to  be  personal  on 
the  part  of  the  obligor,  whenever,  in  a  contract  to  do,  he  undertakes  to 
perform  any  thing  that  requires  his  personal  skill  or  attention  ;  in  this 
case,  if  that,  which  was  to  be  done,  was  not  solely  and  exclusively  for 
the  use  or  gratification  of  the  obligee,  the  obligation,  although  personal 
as  to  the  obligor,  will  be  heritable  against  the  heirs  of  the  obligee  for 
the  equivalent  to  be  paid  or  given  for  that  which  was  to  be  done. 

Art.  1996. — The  obligation  shall  be  presumed  to  be  personal  as  to 
the  obligee,  in  a  contract  to  do  or  to  give,  when  that  which  was  to  be 
done  or  given,  was  exclusively  for  the  personal  gratification  of  the  obli- 
gee, and  could  produce  no  benefit  to  his  heirs. 

Art.  1997. — In  ca.se  of  obligations  purely  personal  as  to  the  obligor, 
if  he  have  received  an  equivalent  that  can  be  appreciated  in  money  as  a 
consideration,  but  dies  before  performance  of  his  obligation,  his  heirs 
may  be  obliged  to  restore  it  or  its  value. 

Art.  1998. — In  like  manner,  if  the  obligation  be  purely  persoaal  as 


274  OF  CONVENTIONAL  OBLIGATIONS. 

to  the  obligee  Tvho  dies  before  performance,  his  heirs  may  recover  from 
the  obligor  the  value  of  any  equivalent  he  may  have  received. 

Art.  1999. — An  obligation  to  pay  an  annuity  to  a  certain  person 
during  the  life  of  the  obligor,  is  personal  as  to  both,  and  is  extinguish- 
ed by  the  death  of  either. 

Art.  2000. — A  merely  personal  obligation  to  do,  imposed  by  testa- 
ment as  the  condition  on  which  a  legacy  is  to  take  eifect,  is  void,  if  the 
legatee  die  before  performance,  or  before  he  has  been  put  in  default, 
and  the  legacy  will  take  effect. 

Art.  2001. — But  if  what  is  to  be  done,  be  a  thing  that  can  as  well 
be  done  by  the  heirs  of  the  legatee  as  by  him,  the  obligation  shall  be 
heritable,  and  they  must  perform  it  before  the  legacy  can  take  effect. 
The  provisions  of  this  and  the  preceding  article  relate  only  to  testamen- 
tary dispositions. 

Art.  2002. — All  contracts  for  the  hire  of  labor,  skill,  or  industry 
without  any  distinction,  whether  they  can  be  as  well  performed  by  any 
other  as  by  the  obligor,  unless  there  be  some  special  agreement  to  the 
contrary,  are  considered  as  personal  on  the  part  of  the  obligor,  but  her- 
itable on  the  part  of  the  obligee. 

Contracts  of  mandate  and  partnership  are  mutually  personal. 

Art.  2003. — Heritable  obligations  and  stipulations  give  to  and  im- 
pose upon  heirs,  assigns,  and  other  representatives,  the  same  duties  and 
rights  that  the  original  parties  had  and  were  liable  to,  except  that  bene- 
ficiary heirs  can  only  be  liable  to  the  amount  of  the  succession. 

See  6  L.  102. 

Art.  2004. — All  rights  acquired  by  an  heritable  obligation  may  be 
assigned ;  this  assignment  may  be  made,  expressly  by  contract  granting 
such  right,  or  impliedly  by  the  conveyance  of  the  property  to  which  they 
are  attached. 

Art.  2005. — When  obligations  are  attached  to  real  property,  they 
form  the  third  branch  of  the  first  division  of  obligations  of  this  chap- 
ter, and  are  called  real  obligations. 

Art.  2006* — Not  only  the  obligation,  but  the  right  resulting  from 
a  contract  relative  to  real  property,  passes  with  the  property.  Thus, 
the  right  of  servitude  in  favor  of  real  property,  passes  with  it,  and  thus 
also  the  heir  or  other  acquirer  will  have  the  right  to  enforce  a  contract 
made  for  the  improvement  of  the  property  by  the  person  from  whom  he 
acquired  it. 

Art.  2007. — Eeal  obligations  may  be  created  in  three  ways  : 

1.  By  the  alienation  of  real  property,  subject  to  a  real  condition, 
either  expressed  or  implied  by  law ; 

2.  By  alienating  to  one  person  the  real  property,  and  to  another,  some 
real  right  to  be  exercised  upon  it : 


275  OF  CONVENTIONAL  OBLIGATIONS.  275 

3.  By  the  creation  of  a  right  of  mortgage  upon  it. 

All  those  contracts  give  rise  to  obligations  purely  real  on  the  part  of 
those  who  acquire  the  land,  under  whatever  species  of  title  they  possess 
it ;  they  are  not  personally  liable,  but  the  real  property  is,  and  by  aban- 
doning it  to  the  obligee,  they  relieve  themselves  from  all  responsibilitj-. 

A  sale  subject  to  a  rent  charge,  or  to  a  right  of  redemption  as  con- 
sideration of  the  sale,  are  examples  of  the  first  kind  of  obligation ;  ser- 
vitudes, the  right  of  use  and  habitation  and  usufruct,  are  examples  of 
the  second ;  and  the  several  kinds  of  mortgages,  and  the  creation  of  a 
rent  charge  of  the  third. 

See  2  L.  92. 

Art.  2008. — The  real  obligation,  created  by  condition  annexed  to 
the  alienation  of  real  property,  is  susceptible  of  all  the  modifications 
that  the  will  of  the  parties  can  suggest,  except  such  as  are  forbidden  by 
law.  These  conditions  are  either  conditions  precedent,  which  suspend 
the  operation  of  the  contract  until  they  are  performed,  or  subsequent  and 
resolutory,  which,  unless  they  are  performed,  annul  the  contract.  These 
will  be  more  fully  defined  in  the  section  which  treats  of  conditional  ob- 
ligations. 

Art.  2009. — There  are  also  conditions  implied  by  law,  which  create 
a  legal  obligation,  such  as  the  obligation  to  pay  the  price  to  the  seller, 
and  to  furnish  roads  to  the  public. 

See  2  L.  92. 

Art.  2010. — Not  only  servitudes,  but  leases  and  all  other  rights, 
which  the  owner'  had  imposed  on  his  land  before  the  alienation  of  the 
soil,  form  real  obligations  which  accompany  it  in  the  hands  of  the  person 
who  acquires  it,  although  he  have  made  no  stipulation  on  the  subject,  or 
they  be  not  mentioned  in  the  act  of  transfer.  The  purchaser  may,  if 
the  circumstances  permit  it,  have  relief  against  the  seller  for  concealment 
of  such  charges,  but  the  law  establishes  the  rule,  that  no  one  can  trans- 
fer a  greater  right  than  he  himself  has,  except  where  the  neglect  of  some 
formality  required  by  law  has  subjected  the  owner  of  the  real  encum- 
brance required  to  a  loss  of  his  right,  in  favor  of  a  creditor  or  bona  fide 
purcliaser. 

See  4  N.  S.  6GG ;  2  L.  92,  514. 

Art.  201 1. — The  several  kinds  of  mortgages  which  create  a  real  ob- 
ligation, and  the  rules  to  which  they  are  subject,  will  be  found  in  the 
corresponding  title  of  this  book. 

Art.  2012. — A  rent  charge,  created  byway  of  condition  to  the  ali- 
enation of  the  property,  has  been  herein  before  explained.  But  a  rent 
charge  may  be  created  and  imposed  on  particular  property,  independent 
of  any  alienation  of  it,  for  the  security  or  extinguishment  of  a  debt ,  and 
it  may  be  perpetual  or  temporary,  and,  in  either  case,  forms  a  real  obli- 
gation, which  passes  with  the  laud. 

Art.  2013. — By  the  constitution  of  rent  charge,  the  possession  of 
the  property  does  not  pass  to  the  obligee,  it  is  merely  a  designation  of 


276  OF  CONVENTIONAL  OBLIGATIONS. 

the  property,  which  is  subject  to  the  obligation;  should  the  possession 
be  delivered,  it  becomes  another  species  of  contract  called  antichresis, 
the  rules  relative  to  which  are  found  under  the  proper  head. 

Art.  2014. — Considered  with  respect  to  those  who  have  contracted 
them  some  real  obligations  are  also  personal,  such  are  those  created  by 
mortgage  for  the  payment  of  a  debt.  Others-  are  strictly  real,  both  as 
to  the  contracting  party  and  his  heirs  or  other  successors.  A  mortgage 
given  to  secure  the  debt  of  another,  without  any  obligation  of  personal 
responsibility,  is  an  example  of  this  latter  kind.  But  no  real  obligation 
is  pei'sonal,  as  to  a  subsequent  possessor  of  the  property  on  which  it  is 
created,  unless  he  has  made  it  such  by  his  own  act. 


Section  III. — Of  Simple  and  Conditional  Obligations, 

§  1.   General  Fromsions. 

Art.  2015. — Simple  obligations  are  such  as  are  not  dependent  for 
their  execution  on  any  event  provided  for  by  the  parties,  and  which  are 
not  agreed  to  become  void,  on  the  happening  of  any  such  event. 

2  A.  9S9  ;  See  5  N.  S.  409 ;  3  L.  308 ;  2  K.  168. 

Art.  2016. — Conditional  obligations  are  such  as  are  made  to  depend 
on  an  uncertain  event.  If  the  obligation  is  not  to  take  e  fifect  until  the 
event  happen,  it  is  a  suspensive  condition ;  if  the  obligation  takes  effect 
immediately,  but  is  liable  to  be  defeated  when  the  event  happens,  it  is 
then  a  resolutory  condition. 

3  L.  313 ;  2  A.  089 ;  See  10  K.  521. 

Art.  2017. — Conditions,  whether  suspensive  or  resolutory,  are  eithex 
casual,  potestative,  or  mixed. 

Art.  2018. — The  casual  condition  is  that  which  depends  on  chance, 
and  is  no  way  in  the  power  either  of  the  creditor  or  of  the  debtor. 

Art.  2019. — The  potestative  condition  is  that  which  makes  the  exe- 
cution of  the  agreement  depend  on  an  event  which  it  is  in  the  power  of 
the  one  or  the  other  of  the  contracting  parties  to  bring  about  or  to 
hinder. 

3  L.  313. 

Art.  2020. — A  mixed  condition  is  one  that  depends  at  the  same  time 
on  the  will  of  one  of  the  parties,  and  on  the  will  of  a  third  person,  or  on 
the  will  of  one  of  the  parties  and  also  on  a  casual  event. 

Art.  2021. — Conditions  are  either  express  or  implied.  They  are 
express,  when  they  appear  in  the  contract ;  they  are  implied,  whenever 
they  result  from  the  operation  of  law,  from  the  nature  of  the  contract, 
or  from  the  presumed  intent  of  the  parties. 

2  A.  989;  6  A.  84, 

Art.  2022. — Whether  the  parties  intended  to  create  a  condition,  or 
only  to  modify  the  obligation  without  making  its  existence  depend  on 


277  OF  CONVENTIONAL  OBLIGATIONS.  277 

the  event,  must  be  determined,  in  doubtful  cases,  by  applying  the  rulcb 
herein  before  established  for  the  interpretation  of  obligations. 

Art.  2023. — The  contract  for  which  the  condition  forms  a  part,  is. 
like  all  others,  complete  by  the  assent  of  the  parties  ;  the  obligee  has  a 
right  of  which  the  obligor  cannot  deprive  him ;  its  exercise  is  only  sus- 
pended, or  may  be  defeated,  according  to  the  nature  of  the  condition. 

8  A.  2T4 

Art.  2024. — The  right,  described  in  the  last  preceding  article,  is 
heritable,  if  it  be  not  one  of  those  that  result  from  an  obligation  desig- 
nated in  the  preceding  section  as  a  personal  one. 

Art.  2025. — The  right  acquired  by  a  legatee  under  a  conditional  be- 
quest, is  the  same  as  that  given  to  an  obligee  by  contract,  and  creates  a 
corresponding  obligation  on  the  heirs  to  deliver  the  legacy  on  the  hap- 
pening of  the  condition.  But  there  is  this  diflference,  that  (except  in  the 
case  provided  for  in  tlie  last  preceding  section,  of  the  condition  to  do  a 
mei'cly  personal  act),  the  right  is  not  transmitted  to  the  heirs  of  the  le- 
gatee, in  case  he  die  before  the  condition  happens,  unless  the  testator 
has  expressed  a  different  intention. 

Art.  202G. — Every  condition  of  a  thing  impossible,  or  contra  bonos 
mores  (repugnant  to  moral  conduct),  or  prohibited  by  kiw,  is  null,  and 
renders  void  the  agreement  which  depends  on  it. 

Art.  2027. — The  condition  not  to  do  a  thing  impossible,  does  not 
render  void  the  obligation  contracted  under  that  condition. 

Art.  2028. — Physical  and  moral  impossibilities  only  are  intended 
by  the  preceding  articles  :  If  the  condition  be  only  relatively  impossible 
that  is  to  say,  impracticable  by  the  obligor,  only  from  the  want  of  skill, 
strength  or  means,  but  practicable  by  anotlier,  it  is  not  an  impossible 
condition. 

Art.  2029. — Every  obligation  is  null  that  has  been  contracted  on  a 
potestative  condition,  on  the  part  of  him  who  binds  himself 

Sec  2  A.  971 ;  5  A.  231;  See  3»G0. 

Art.  2030. — The  last  preceding  article  is  limited  to  potestative 
conditions,  which  make  the  obligation  depend  solely  on  the  exercise  of 
the  obligor's  will ;  but  if  the  condition  be,  tliat  the  obligor  shall  do  or 
not  do  a  certain  act,  although  the  doing  or  not  doing  of  tlie  act  depends 
on  the  will  of  tlie  obligor,  yet  the  obligation  depeiuliug  on  such  condi- 
tion is  not  void. 

Art.  2031. — An  obligation  may  also  be  made  by  consent  of  the 
parties,  to  depend  on  the  will  of  the  obligee  for  its  duration.  Thus  a 
lease  may  be  made  during  the  will  of  the  lessor,  and  a  sale  may  be  made 
conditioned  to  be  void,  if  the  vendor  chooses  to  redeem  the  property 
Bold. 

Art.  2032. — Every  condition  must  be  performed  in  the  manner  that 
it  is  probable  that  the  parties  wished  and  intended  that  it  should  be. 

3L.  502;  11  L.  374;  2  \.  IGS. 

Art.  2033. — When  an  obligation  has  been  contracted  on  condition 
that  an  event  shall  happen  within  a  limited  time,  the  condition  is  con 


278  OF  CONVENTIONAL  OBLIGATIONS. 

sidered  as  broken,  when  the  time  has  expired  without  the  event  having 
taken  place.  If  there  be  no  time  fixed,  the  condition  may  always  be 
performed,  and  it  is  not  considered  as  broken,  until  it  is  become  certain 
that  the  event  will  not  happen. 

1  A.424;  3  A.  274. 

AuT.  2034. — When  an  obligation  has  been  contracted,  on  condition 
that  a  particular  event  shall  not  happen  within  a  certain  space  of  time, 
that  condition  is  fulfilled,  when  that  time  is  elapsed  without  the  event's 
having  taken  place  :  it  is  equally  fulfilled,  if,  before  the  expiration  of  the 
time,  it  be  certain  that  the  event  will  not  take  place ;  and  if  the  time  be 
not  fixed,  the  condition  is  not  complied  with,  until  it  be  certain  that  the 
event  will  not  happen. 

Art.  2035. — The  condition  is  considered  as  fulfilled,  when  the  ful- 
filment of  it  has  been  prevented  by  the  party  bound  to  perform  it. 

3  L.  501 ;  4  E.  45  ;  See  7  N,  S.  166 ;  19  L.  235 ;  6  R.  450. 

Art.  2036. — The  condition  being  complied  with,  has  a  retrospective 
effect  to  the  day  that  the  engagement  was  contracted ;  if  the  creditor 
dies  before  the  accomplishment  of  the  condition,  his  rights  devolve  on 
his  heirs. 

Art.  2037. — The  creditor  may,  before  the  fulfilment  of  the  condi- 
tion, perform  all  acts  conservatory  of  his  rights. 

§  2. —  Of  tlie  Suspensive  Condition. 

Art.  2038. — The  obligation  contracted  on  a  suspensive  condition,  is 
that  which  depends,  either  on  a  future  and  uncertain  event,  or  on  an 
event  which  has  actually  taken  place,  without  its  being  yet  known  to  the 
parties. 

In  the  former  case,  the  obligation  cannot  be  executed  till  after  the 
event ;  in  the  latter,  the  obligation  has  its  effect  from  the  day  on  which 
it  was  contracted,  but  it  cannot  be  enforced  until  the  event  be  known. 

Art.  2039. — When  the  obligation  has  been  contracted  on  a  suspen- 
sive condition,  the  thing  which  forms  the  subject  of  the  contract  is  at 
the  risk  of  the  obligor,  until  the  event  which  forms  the  condition  has 
happened,  subject,  however,  to  the  following  restrictions  and  modifica- 
tions of  his  responsibility : 

If  the  thing  be  entirely  destroyed,  without  the  fault  of  the  debtor, 
the  obligation  is  extinguished  ; 

If  the  thing  be  impaired,  without  the  fault  of  the  debtor,  it  is  at  the 
option  of  the  creditor,  either  to  dissolve  the  obligation,  or  to  require  the 
thing  in  the  state  in  which  it  is,  without  diminution  in  the  price ; 

If  the  thing  be  impaired,  through  the  fault  of  the  debtor,  the  creditor 
has  a  right  to  dissolve  the  obligation,  or  to  require  the  thing  in  the  state 
in  which  it  is,  with  damages. 

§  3. —  Of  tlie  Rfsolutory  Condition. 

Art.  2040. — The  dissolving  condition  is  that  which,  when  accom- 
plished, operates  the  revocation  of  the  obligation,  placing  ma'^ters  in  the 
same  state  as  though  the  obligation  had  not  existed. 

It  does  not  suspend  the  execution  of  the  obligation  ;  it  only  obliges 


279  OF  CONVENTIONAL  OBLIGATIONS.  279 

the  creditor  to  restore  what  he  has  received,  in  case  the  event  provided 
for  in  the  condition  takes  place. 

19  L.  31 ;  10  K.  412;  2  A.  989;  6  A.  3. 

Art.  2041. — A  resolutory  condition  is  implied  in  all  commutative 
contracts,  to  take  effect,  in  case  either  of  the  parties  do  not  comply 
with  his  engagements:  in  this  case  the  contract  is  not  dissolved  of  right; 
the  party  complaining  of  a  breach  of  the  contract  may  cither  sue  for  its 
dissolution,  with  damages,  or,  if  the  circumstances  of  tlie  case  permit, 
demand  a  specific  performance. 

15  L.  T5 ;  8  K.  157 ;  10  R.  412 ;  11  R.  18  ;  6  A.  8. 

Art.  2042. — In  all  cases  the  dissolution  of  a  contract  may  he  de- 
manded by  suit  or  by  exception,  and  when  tlie  resolutory  condition  is  an 
event  not  depending  on  the  vnW  of  either  party,  the  contract  is  dissolved 
of  right,  but,  in  other  cases,  it  must  be  sued  for ;  and  the  party  in  de- 
fault may,  according  to  circumstances,  have  a  further  time  allowed  for 
the  performance  of  the  condition. 

8  L.  522 ;  13  L.  249 ;  9  R.  8T7 ;  12  R.  4T2  ;  6  A.  3 ;  Sco  T  M.  218. 


Section  IV. —  Of  Limited  and  Unlimited  Obligations  as  to  the  Time 
of  their  Performance. 

Art.  2043. — The  time  given  or  limited  for  the  performance  of  an 
obligation  is  called  its  term. 

Art.  2044. — A  term  may  not  only  consist  of  a  determinate  lapse  of 
time,  but  also  of  an  event,  provided  that  event  be,  in  the  course  of  na- 
ture, certain  ;  if  it  be  uncertain,  it  forms  a  condition. 

Art.  2045. — "When  no  term  is  fixed  by  the  parties  for  the  perform- 
ance of  the  obligation,  it  may  be  executed  immediately,  unless  from  the 
nature  of  the  act,  a  term,  either  certain  or  uncertain,  must  be  applied. 
Thus,  an  obligation  to  pay  money,  without  any  stipulation  for  time, 
may  be  enforced  at  the  will  of  the  obligee.  But  a  promise  to  make  a 
crop  of  sugar  is  necessarily  deferred,  vmtil  the  uncertain  period  when 
the  cane  shall  be  fit  to  cut. 

Art.  2046. — The  term  differs  from  the  condition,  inasmuch  as  it 
does  not  suspend  the  engagement,  but  only  retards  its  execution. 

Art.  2047. — What  is  due  only  at  a  certain  time,  cannot  be  demanded 
before  the  expiration  of  the  intermediate  time  ;  but  what  has  been  paid 
in  advance,  cannot  be  re-demanded. 

Art.  2048. — The  term  is  always  presumed  to  be  stipulated  in  favor 
of  the  debtor,  unless  it  result  from  the  stipulation,  or  from  circumstan- 
ces, that  it  was  also  agreed  upon  in  favor  of  the  creditor. 

Art.  2049. — Wherever  there  is  a  cessio)i  of  property,  either  volun- 
tary or  forced,  all  debts  due  by  the  insolvent  shall  be  deemed  to  be  due, 
although  contracted  to  be  paid  at  a  term  not  yet  arrived ;  but  in  such 
case,  a  discount  must  be  made  of  the  interest  at  the  highest  conventional 
rate,  if  none  has  been  agreed  by  the  contract. 

1  L.  600 ;  C  L.  762  ;  8  L.  532 ;  10  R.  533. 


280  OF  CONVENTIONAL  OBLIGATIONS. 

Art.  2050. — If  a  debt  be  contracted  to  be  paid  at  a  term,  and  secu- 
rity be  given  for  the  payment,  if,  from  whatever  cause,  the  security 
should  fail,  or  be  rendered  insufficient,  the  creditor  may,  before  the  obli- 
gation is  due,  exact,  either  that  good  security  be  given,  or  that  the  debt 
be  immediately  paid. 

Art.  2051. — If  the  contract  be  to  give  good  security,  and  a  person 
be  afterwards  given  as  such  security,  who  fails,  the  provision  of  the 
last  preceding  article  takes  effect ;  but  when  security  is  given  of  a  de- 
terminate person,  then  there  is  no  action  given  on  the  failure  of  the 
security. 

Art.  2052. — Where  a  term  is  given  or  limited  for  the  performance 
of  an  obligation,  the  obligor  has  until  sunset  of  the  last  day  limited  for 
its  performance,  to  comply  with  his  obligation,  unless  the  subject  of  the 
contract  cannot  be  done  after  certain  hours  of  that  day. 

Art.  2053. — When  the  contract  is  to  do  the  act  in  a  certain  num- 
ber of  days,  or  in  a  certain  number  of  days  after  the  date  of  the  con- 
tract, the  day  of  contract  is  not  included  in  the  number  of  days  to  be 
counted,  and  the  obligor  has  until  sunset  of  the  last  day  of  the  number 
enumerated,  for  the  performance  of  his  contract,  with  the  exception  con- 
tained in  the  last  preceding  article. 

3  A.  527. 

Art.  2054. — Where  the  obligation  is  not  to  do  a  thing,  without  a 
notice  of  a  certain  number  of  days,  or  until  after  so  many  days,  neither 
the  day  of  the  contract,  nor  tLe  day  of  its  performance,  are  calculated. 

Art.  2055. — Where  the  term,  referred  to  by  the  contract,  consists 
of  one  or  more  months,  the  parties,  if  they  have  not  made  any  other  ex- 
planation, shall  be  deemed  to  have  meant  months,  in  the  order  in  which 
they  stand  in  the  calendar  after  the  date  of  the  obligation,  and  with  the 
number  of  days  such  months  respectively  have. 

Art.  2056. — Where  the  term,  refei-red  to  in  the  contract,  consists 
of  one  or  more  years,  the  calendar  year  shall  be  presumed  to  have  been 
intended. 


Section  V. — Of  Conjunctive  and  Alternative  Obligations. 

Art.  2057. — When  several  different  things  form  the  subject  of  a 
contract,  it  is  either  conjunctive  or  alternative. 

Art.  2058. — A  conjunctive  obligation  is  one  in  which  the  several 
objects  in  it  are  connected  by  a  copulative,  or  in  any  other  manner 
which  shows  that  all  of  them  are  severally  comprised  in  the  contract. 
This  contract  creates  as  many  different  obligations  as  there  are  different 
objects ;  and  the  debtor,  when  he  wishes  to  discharge  himself,  may  force 
the  creditor  to  receive  them  separately. 

Art.  2059. — But  if  several  things  be  comprehended  in  one  general 
name  in  the  contract,  it  is  not  conjunctive.  The  sale  of  a  flock  of 
sheep,  or  the  stock  on  a  farm,  are  examples  of  this  exception. 


281  OF  CONVENTIONAL  CfBLIGATIONS.  281 

Art.  2060. — Where  a  sum  is  promised  to  he  paid  at  different  in- 
stalments, a  conjunctive  obligation  is  created,  and  the  payment  may  be 
severally  paid  or  enforced.  Rents,  payable  at  fixed  periods,  come  also 
under  this  rule. 

Art.  2061. — But  where  the  things,  which  form  the  subject  of  the 
contract,  are  separated  by  a  disjunctive,  then  the  obligation  is  alterna- 
tive. A  promise  to  deliver  a  certain  thing,  or  to  pay  a  specified  sum 
of  money,  is  an  example  of  this  kind  of  obligation. 

Art.  2062. — The  debtor  in  an  alternative  obligation,  is  discharged 
by  the  delivery  of  one  of  the  two  things  that  were  comprised  in  the  ob- 
ligation. 

Art.  2063. — The  option  belongs  to  the  debtor,  unless  it  has  been 
expressly  granted  to  the  creditor. 

Art.  2064. — The  debtor  may  exonerate  himself  by  delivering  one 
of  the  two  things  promised,  but  he  cannot  force  the  creditor  to  receive 
a  part  of  the  one,  and  a  part  of  the  other. 

Art.  2065. — The  obligation  is  pure  and  simple,  although  contracted 
in  an  alternative  manner,  if  one  of  the  two  things  promised  could  not 
be  the  subject  of  the  obligation. 

Art.  2066. — The  alternative  obligation  becomes  pure  and  simple, 
if  one  of  the  things  promised  be  destroyed,  even  through  the  fault  of 
the  debtor,  and  can  no  longer  be  delivered.  The  price  of  that  thing 
cannot  be  offered  in  its  stead. 

If  both  the  things  be  destroyed,  and  the  debtor  be  in  fault  with  re- 
gard to  one  of  them,  he  must  pay  the  price  of  that  one  which  was  de 
stroyed  the  last. 

Art.  2067. — "When,  in  the  cases  provided  for  in  the  preceding  arti- 
cle, the  option  was  given  by  agreement  to  the  creditor ;  cither  only  one 
of  the  things  is  destroyed,  and  then,  if  it  be  without  the  fiault  of  the 
debtor,  the  creditor  must  have  that  one  which  remains ;  if  the  debtor 
be  in  fault,  the  creditor  may  demand  the  thing  that  remains,  or  the 
price  of  that  which  is  destroyed. 

Or  both  the  things  are  destroyed,  and  then,  if  the  debtor  be  in  fauU 
with  regard  to  both,  or  even  with  regard  to  one  of  thom  alone,  the  ere 
ditor  has  his  option  to  demand  either  of  them. 

Art.  2068. — If  both  the  things  be  destroyed,  without  tlie  fault  of 
the  debtor,  and  before  he  lias  delayed  the  delivery,  the  obligation  bo 
comes  extinct. 

Art.  2069. — The  same  principles  apply  to  cases  where  there  are 
more  than  two  things  comprised  in  the  alternative  obligation. 

Art.  2070. — -Where  several  alternative  obligations  are  divided  for 
their  execution  by  different  terms,  there  the  election  of  one  alternative 
for  one  of  the  terms,  does  not  oblige  the  parties  to  make  the  same  elec- 
tion for  the  others. 

Art.  2071. — If  an  obligation  or  testamentary  disposition,  be  made 
to  different  obligees,  or  legatees,  or  heirs,  in  the  alternative,  such  obli- 
gation shall  be  deemed  to  proceed  from  error  in  wording  of  the  obliga- 
tion or  will,  and  shall  be  construed  conjunctively. 


« 
282  OF  CONVENTIONAL  OBLIGATIONS. 

Section  VI. — Of  several  Obligations,  joint  Obligations,  and  Ohliga 

tions  in  solido. 

§  1. —  General  Provisions. 

Akt.  2072. — "Where  there  are  more  than  one  obligor  or  obligee  named 
in  the  same  contract,  the  obligation  it  maj'  produce  may  be  either  seve- 
ral or  joint  or  in  solido,  both  as  regards  the  obligor  and  the  obligee. 

See  12  E.  1S3. 

Art.  2073. — Several  obligations  are  produced,  -when  what  is  pro- 
mised by  one  of  the  obligors  is  not  promised  by  the  other,  but  each  one 
promises  separately  for  himself  to  do  a  distinct  act ;  such  obligations, 
although  they  may  be  contained  in  the  same  contract,  are  considered  as 
much  individual  and  distinct  as  if  they  had  been  in  different  contracts, 
and  made  at  different  times. 

10  E.  14 ;  3  A.  1G2. 

Art.  2074. — In  like  manner,  a  contract  may  contain  distinct  obliga- 
tions to  perform  different  things  in  fovor  of  several  persons ;  the  obliga- 
tions in  this  case  are  several  and  unconnected,  and  each  obligee  has  his 
separate  and  distinct  remedy  on  the  obligation  created  towards  him  indi- 
vidually. 

12  R.  5G3. 

Art.  2075. — When  several  persons  join  in  the  same  contract  to  do 
the  same  thing,  it  produces  a  joint  obligation  on  the  part  of  the  obli- 
gors. 

15  L.  154 ;  10  E.  14;  3  A.  162,  351. 

Art.  2076. — When  one  or  more  persons  make  an  obligation  to  seve- 
ral persons  for  the  performance  of  something  for  the  common  benefit  of 
all  the  obligees,  it  creates  an  obligation  which  is  joint  in  favor  of  the 
obligees. 

12  E.  5C3. 

Art.  2077. — When  several  persons  obligate  themselves  to  tlic  obli- 
gee by  the  terms  in  solido,  or  use  any  other  expressions,  which  clearly 
show  that  they  intend  that  each  one  shall  be  separately  bound  to  perform 
the  whole  of  the  obligation,  it  is  called  an  obligation  in  solido  on  the 
part  of  the  obligors. 

See  12  E.  1S3. 

Art.  2078. — In  like  manner,  when  the  obligor  contracts  expressly, 
or  by  using  the  technical  words  in  solido,  that  he  will  give  to  either  one, 
or  to  all  of  several  obligees  the  right  of  enforcing  the  obligation  against 
him,  it  creates  an  obligation  in  solido  in  favor  of  the  obligees. 


§  2. —  Of  the  Hides  which  govern  several  Obligations,  and  joint  OUigations. 

Art.  2079. — Several  obligations,  although  created  by  one  act,  have 
no  other  effects  than  the  same  obligations  would  have  had,  if  made  by 
separate  contracts ;  therefore  they  are  governed  by  the  rules  which  ap- 
ply to  all  contracts  in  general. 


283  OF  CONVENTIONAL  OBLIGATIONS.  283 

Art.  2080. — In  every  suit  on  a  joint  contract,  all  the  obligors  must 
be  made  defendants,  and  no  judgment  can  be  obtained  against  any,  un- 
less it  be  proved  that  all  joined  in  the  obligation,  or  are  by  law  presumed 
-to  have  done  so. 

8  L.  437,  274 ;  8  L.  524 ;  11  L.  463 ;  13  L.  482 ;  14  L.  365;  16  L.  119  ;  5  R.  224;  6  R.  351 ;  T  E.  181 ; 
10  R.  430;  6  A.  423;  See  10  E.  425. 

Art.  2081. — In  a  suit  on  a  joint  obligation,  judgment  must  be  ren- 
dered against  each  defendant  separately,  for  his  proportion  of  the  debt 
or  damages,  if  the  suit  i-esolves  itself  into  damages.  If  the  suit  be  for 
a  specific  performance,  each  defendant  may  be  compelled  to  execute  his 
proportion  of  the  obligation,  if  the  nature  of  the  case  permit  and  justice 
require  it.  The  proportion,  meant  by  this  and  the  succeeding  articles, 
is  calculated  by  the  number  of  the  obligors,  each  one  answering  for  an 
equal  part,  unless  the  parties  have  expressed  a  different  intention. 

3  L.  438 ;  19  L.  8S5 ;  See  5  L.  120 ;  12  R.  563 ;  Sec  2  L.  419. 

Art.  2082. — If  one  of  the  obligors  in  a  joint  obligation  has  perform- 
ed or  discharged  his  part  of  the  obligation,  although  he  must  be  joined 
in  the  suit,  on  account  of  the  eventual  interest  he  has  for  the  repetition 
of  his  payment,  if  the  contract  be  disproved  or  annulled  ;  yet,  if  tlie  con- 
tract be  affirmed,  the  defendant,  who  has  paid  his  proportion  or  per- 
foi'ined  his  part,  shall  have  judgment.  The  judgment  for  the  costs  is  in 
solido  against  all  the  defendants  who  have  not  paid  or  performed  their 
parts. 

16  L.  119;  2  A.  5S9. 


§  3. — Of  the  Rules  which  govern  Oiligations  tetween  Creditors  in  solido. 

Art.  2083. — The  obligation  is  in  solido,  or  joint  and  several  between 
several  creditors,  when  the  title  expressly  gives  to  each  of  them  the 
right  of  demanding  payment  of  the  total  of  what  is  due,  and  when  the 
payment  made  to  any  one  of  them  discharges  the  debtor,  although  the 
benefit  of  the  obligation  be  to  be  shared  and  divided  among  the  different 
creditors. 

Art.  2084. — It  is  at  the  option  of  the  debtor  to  pay  any  one  of  the 
creditors  in  solido,  as  long  as  he  has  not  been  prevented  by  a  suit  insti- 
tuted by  one  of  them. 

Yet  if  one  of  the  creditors  in  solido  remits  the  debt,  the  debtor  is 
hereby  exonerated  only  as  to  the  part  coming  to  that  individual  creditor. 

Art.  2085. — Every  act,  which  interrupts  prescription  with  regard  to 
one  of  the  creditors  in  solido,  avails  the  other  creditors. 


§  4. — Of  the  Rules  which  govern  Ohligations  with  rc-ijicct  to  Debtors  in  solido. 

Art.  2086. — There  is  an  obligation  ^?^  solido  on  the  part  of  the 
debtors,  when  tlicy  are  all  obliged  to  the  same  thing,  so  tluit  each  may 
be  compelled  for  the  whole,  and  when  the  payment  which  is  made  by 
one  of  them,  exonerates  the  others  towards  the  creditor. 

4  L.  151 ;  2  A.  331 ;  See  12  R.  188. 


284  OF  CONVENTIONAL  OBLIGATIONS. 

Art.  2087. — The  obligation  may  be  i7i  solido,  although  one  of  the 
debtors  be  obliged  differently  from  the  other  to  the  payment  of  one  and 
the  same  thing ;  for  instance,  if  the  one  be  but  conditionally  bound, 
whilst  the  engagement  of  the  other  is  pure  and  simple,  or  if  the  one  is 
allowed  a  term  which  is  not  granted  to  the  other. 

Sec  12  R.  183. 

Art.  2088. — An  obligation  in  solido  is  not  presumed ;  it  nrust  be 
expressly  stipulated. 

This  rule  ceases  to  prevail  only  in  cases  where  an  obligation  in 
solido  takes  place  of  right  by  virtue  of  some  provisions  of  the  law. 

12  M.  316;  5L.  123;  15L.  154,  5SS;  5R.  70;  8E.  149;  3  A.  5T4;  6  A.  53. 

Art.  2089. — The  creditor  of  an  obligation  contracted  in  solido,  may 
apply  to  any  one  of  the  debtors  he  pleases,  without  the  debtor's  having 
a  right  to  plead  the  benefit  of  division. 

2  A.  334,  830 ;  See  3014. 

Art.  2090. — A  suit  brought  against  one  of  the  debtors  does  not 
bar  the  creditor  from  bringing  suits  on  the  same  account  against  the 
others. 

Art.  2091. — If  the  thing  due  has  perished,  through  the  fault  of  one 
or  more  debtors  in  solido,  or  while  he  or  they  delayed  to  deliver  it,  the 
other  creditors  are  not  discharged  from  the  obligation  of  paying  the 
value  of  tlie  thing,  but  the  latter  are  not  liable  for  damages. 

The  creditor  can  claim  damages  only  from  the  debtors  by  whose 
fault  the  thing  was  lost,  and  from  those  who  delayed  to  deliver  it. 

Art.  2092. — A  suit  brought  against  one  of  the  debtors  in  solido^ 
interrupts  prescription  with  regard  to  all. 

2  A.  916,  970 ;  5  A.  551 ;  See  12  K.  243 ;  See  8517. 

Art.  2093. — A  demand  of  interest  made  of  one  of  the  debtors  in 
solido,  makes  interest  run  with  respect  to  all. 

Art.  2094. — A  co-debtor  in  solido,  being  sued  by  the  creditor,  may 
plead  all  the  exceptions  resulting  from  the  nature  of  the  obligation,  and 
all  such  as  are  personal  to  himself,  as  well  as  such  as  are  common  to  all 
the  creditors. 

He  cannot  plead  such  exceptions  as  are  merely  personal  to  some  of 
the  other  co-debtors. 

Art.  2095. — When  one  of  the  debtors  becomes  sole  heir  of  the 
creditor,  or  when  the  creditor  becomes  sole  heir  of  one  of  the  debtors, 
the  confusion  extinguishes  the  debt  in  solido  only  for  the  part  and  por- 
tion of  the  debtor  or  of  the  creditor. 

Art.  2096. — The  creditor,  who  consents  to  the  division  of  the  debt 
with  regard  to  one  of  the  co-debtors,  still  has  an  action  in  solido  against 
the  others,  but  under  the  deduction  of  the  part  of  the  debtor  whom  he 
has  discharged  from  the  debt  in  solido. 

Art.  2O97. — The  creditor,  who  receives  separately  the  part  of  one 
of  the  debtors,  without  reserving  in  the  receipt  the  debt  in  solido  or  his 
right  in  general,  renounces  the  debt  in  solido,  only  with  regard  to  that 
debtor. 

The  creditor  is  not  deemed  to  remit  the  debt  in  solido  to  the  debtor, 
when  he  receives  from  him  a  sum  equal  to  the  portion  due  by  him, 
unless  the  receipt  specifies  that  it  is  for  his  part. 


285  OF  CONl'ENTIONAL  OBLIGATIONS.  285 

Tho  same  is  to  be  observed  of  tlic  mere  demand  made  of  one  of  the 
co-debtors,  for  his  part,  if  the  hitter  has  not  acquiesced  in  the  demand, 
or  if  a  jifSgmeut  has  not  been  given  against  him. 

Art.  2098. — The  creditor,  who  receives  separately  and  without 
reservation  the  portion  of  one  of  the  co-debtors  in  the  arrearages  or 
interest  of  the  debt,  loses  his  claim  in  soliclo  only  as  to  the  arrearages 
and  interest  due,  and  not  as  to  those  that  may  in  future  become  due, 
nor  as  to  the  capital,  unless  the  separate  payment  has  been  continued 
during  ten  successive  years. 

Art.  2099. — The  obligation  contracted  in  solido  towards  the  creditor, 
is  of  riglit  divided  amongst  the  debtors,  who,  among  themselves,  are 
liable  each  only  for  his  part  and  portion. 

12  E.  1S3. 

Art.  2100. — If  one  of  the  co-debtors  in  solido  pays  the  whole  debt, 
he  can  claim  from  the  others  no  more  than  the  part  and  portion  of  each. 

If  one  of  them  be  insolvent,  the  loss  occasioned  by  his  insolvency 
must  be  equally  shared  amongst  all  the  other  solvent  co-debtors  and 
him  who  has  made  the  payment. 

Art.  2101. — In  case  the  creditor  has  renounced  his  action  in  solido 
against  one  of  the  debtors,  and  one  or  more  of  the  other  co-debtors 
become  insolvent,  the  portion  of  the  insolvent  shall  be  made  up,  by 
equal  contribution,  by  all  the  debtors,  and  even  those  precedently  dis- 
charged from  the  debt  by  the  creditor  in  solido^  shall  contribute  their 
part. 

SeeSL.  351. 

Art.  2102. — If  the  affair,  for  which  the  debt  has  been  contracted 
in  solido,  concern  only  one  of  the  co-obligees  in  solido,  that  one  is  liable 
for  the  whole  debt  towards  the  other  co-debtors,  who,  with  regard  to 
him,  are  considered  only  as  his  securities. 

Art.  2103. — There  are  many  contracts  in  which  the  obligation  is 
declared  by  law  to  be  in  solido,  without  any  express  stipulation  to  that 
effect ;  these  will  be  found  in  the  different  chapters  which  treat  of  such 
aontracts. 


Section  VII. — Gf  Obligations  Divisible  and  Indivisible. 

Art.  2104. — An  obligation  is  divisible  or  indivisible,  according  as 
it  has  for  its  object,  either  a  thing  which,  in  its  delivery,  or  a  fact  which, 
in  its  execution,  is  or  is  not  susceptible  of  division,  whether  material  or 
intellectual. 

Art.  2105. — The  obligation  is  indivisible,  though  the  thing  or  the 
fact  which  is  the  object  of  it,  be  by  its  nature  divisible,  if  tlie  light,  in 
which  it  is  considered  in  the  obligation,  does  not  admit  of  its  being 
partially  executed. 

Art.  2106. — The  stipulation  in  solido  does  not  give  to  the  obliga- 
tion the  character  of  indivisibility. 


286  OF  CONVENTIONAL  OBLIGATIONS. 

§  1. —  Of  the  Effects  of  Divisible  Ohligation. 

Art.  2107. — An  obligation  susceptible  of  division  must  bo^executed 
between  the  creditor  and  the  debtor,  as  though  it  were  iudivisiDlc.  The 
divisibility  is  applicable  only  with  regard  to  their  heirs,  who  can  demand 
of  the  debt,  or  who  are  liable  to  pay  of  it,  only  the  part  which  they  hold, 
or  for  which  they  are  liable  as  representing  the  creditor  or  the  debtor. 

6  L.  18;  8  L.  536 ;  3  R.  4-32 ;  See  5  N.  S.  194;  7  N.  S.  519  ;  10  R.  2o ;  Sec  2149,  2612,  2624. 

Art.  2108. — To  the  principle  laid  down  in  the  preceding  article, 
there  is  an  exception  with  regard  to  the  heirs  of  the  debtor ; 

1.  In  case  the  debt  be  on  a  mortgage  ; 

2.  When  it  is  of  a  determinate  object; 

3.  When  the  debt  is  alternative  of  things  at  the  option  of  the  credi- 
tor, one  of  which  is  indivisible  ; 

4.  When  one  of  the  heirs  is  alone  charged,  by  the  title,  with  the 
execution  of  the  obligation ; 

5.  When  it  results,  either  from  the  nature  of  the  engagement,  or 
from  the  thing  which  is  its  object,  or  from  the  end  proposed  b}'  the  con- 
tract, that  it  was  the  intention  of  the  parties  that  the  debt  should  not  be 
partially  discharged. 

In  the  three  former  cases,  the  heir  who  is  in  possession  of  the  thing 
due,  or  of  the  property  mortgaged  for  the  debt,  may  be  sued  for  the 
whole  on  the  thing  due,  or  on  the  property  mortgaged,  but  he  has  re- 
course against  the  co-heirs. 

In  the  fourth  case,  the  heir  is  alone  charged  with  the  debt ;  and  in 
the  fifth  case,  every  one  of  the  heirs  may  also  be  sued  for  the  whole ; 
but  the  one  su.ed  has  his  recourse  against  the  co-heirs. 

§  2. —  Of  the  Effect  of  the  Indieisihle  OUigation. 

Art.  2109. — Every  one  of  those  who  have  conjointly  contracted  an 
indivisible  debt,  is  liable  for  the  whole,  even  though  the  obligation  was 
not  contracted  in  solido. 

Art.  21 10. — The  case  is  the  same  with  regard  to  the  heirs  of  hira 
who  has  contracted  such  an  obligation. 

Art.  2111. — Every  heir  of  the  creditor  may  require  the  execution 
of  the  indivisible  obligation. 

He  cannot  alone  remit  the  whole  of  the  debt ;  he  cannot  alone  re- 
ceive the  price  instead  of  the  thing.  If  one  of  the  heirs  has  alone  re- 
mitted the  debt,  or  received  the  price  of  the  thing,  his  co-heir  cannot 
demand  the  indivisible  thing  without  making  allowance  for  the  portion 
of  the  co-heir  who  has  remitted  the  debt  or  has  received  the  price. 

Art.  2112. — The  heir  of  the  debtor,  being  sued  for  the  whole  of  the 
obligation,  may  ask  for  a  delay  to  make  his  co-heirs  parties  to  the  suit, 
unless  the  debt  be  of  such  a  nature  that  it  can  be  discharged  only  by 
the  heir  sued,  against  whom,  in  that  case,  judgment  may  be  given,  he 
having  recourse  for  indemnification  against  his  co-heirs. 

Section  VIII. — Of  Obligations  ^oith  Penal  Clauses. 

Art.  2113. — A  penal  clause  is  a  secondary  obligation,  entered  intc 
for  the  purpose  of  enforcing  the  performance  of  a  primary  obligation. 

7  L.  192. 


287  OF  CONVENTIONAL  OBLIGATIONS.  287 

Art.  2114. — A  penal  obligation  necessarily  supposes  two  distinct 
contracts,  one  to  do  or  to  give  that  which  is  the  principal  object  of  the 
contract,  the  other  to  give  or  do  something,  if  the  principal  object  of  the 
agreement  be  not  carried  into  effect. 

Art.  21 1-5. — The  penal  clause  has  this  in  common  with  a  conditional 
obligation,  that  the  penalty  is  due  only  on  condition  that  the  first  part 
of  the  contract  be  not  performed.  But  it  differs  from  it  in  this,  that  in 
penal  contracts  thei-c  must  be  always  a  principal  obligation,  independent 
of  the  penalty,  while  in  conditional  contracts,  there  is  no  obligation,  un- 
less the  condition  happens. 

Art.  21 16. — The  penalty  being  stipulated  merely  to  enforce  the  per- 
formance of  the  principal  obligation,  it  is  not  incurred,  although  the 
principal  obligation  be  not  performed,  if  there  be  a  lawful  excuse  for  its 
non-performance,  such  as  inevitable  accident,  or  irresistible  force. 

Seo  3  L.  SOS. 

Art.  2117. — But  if  the  form  of  the  contract  be  changed,  and  only 
one  obligation  entered  into  subject  to  a  condition,  then  the  obligor  takes 
all  risks  upon  himself,  and  the  penalty  becomes  the  principal  obligation, 
and  may  be  recovered,  if  the  condition  be  not  performed,  although  there 
may  have  been  inevitable  accidents  to  prevent  it. 

Art.  2118. — The  cases  provided  for  by  the  two  last  preceding  arti- 
cles, may  always  be  modified,  like  all  other  obligations,  by  express  sti- 
pulations. A  contract  to  build  a  house  by  a  certain  day,  and  if  it  is  not 
built,  to  pay  one  thousand  dollars,  is  an  example  of  a  penal  obligation, 
in  which  the  obligor  would  be  excused  from  paying  the  penalty,  if  inev- 
itable accident  had  prevented  him  from  building. 

A  contract  to  pay  one  thousand  dollars,  if  the  building  be  not  finished 
at  a  stipulated  time,  is  a  conditional  obligation,  and  gives  a  right  to  the 
penalty',  if,  from  whatever  cause,  the  condition  be  not  performed. 

Soc  3  L.  80S. 

Art.  21 19. — The  nullity  of  the  principal  obligation  involves  that  of 
the  penal  clause. 

The  nullity  of  the  latter  does  not  involve  that  of  the  principal  obli- 
gation. 

G  R.  450. 

Art.  2120. — The  creditor,  instead  of  exacting  the  penalty  stipulated 
from  the  debtor  who  is  in  default,  may  sue  for  the  execution  of  the  prin- 
cipal obligation. 

Art.  2121. — The  penal  clause  is  the  compensation  for  the  damages 
which  the  creditor  sustains  by  the  non-execution  of  the  principal  obliga- 
tion. 

He  cannot  demand  tlie  principal  and  the  penalty  together,  unless  the 
latter  be  stipulated  for  the  mere  delay. 

7L.188. 

Art.  2122. — Whether  the  principal  obligation  contain,  or  do  not 
contain  a  term  in  which  it  is  to  be  fulfilled,  the  penalty  is  forfeited,  only 
when  he  who  has  obligated  him.self  either  to  deliver,  to  take,  or  to  do,  is 
in  delay. 

6  N.  S.  624 ;  6  R.  ^'iO ;  10  R.  52-1 ;  3  A.  444 ;  See  9  R.  535. 

Art.  2123. — The  penalty  may  be  modified  by  the  judge,  when  the 


288  OF  CONVENTIONAL  OBLIGATIONS. 

principal  obligation  has  been  partly  executed,  except  in  case  of  a  contrary 
agreement. 

C  L.  721. 

Art.  2124. — When  the  primitive  obligation,  contracted  with  a  penal 
clause,  is  of  an  indivisible  thing,  the  penalty  is  forfeited  by  the  default 
of  any  one  of  the  heirs  of  the  debtor,  and  it  may  be  exacted,  either 
wholly  against  him  who  has  been  in  default,  or  against  every  one  of  the 
co-heirs  for  his  part  and  portion,  and  in  case  of  mortgage  for  the  whole, 
they  having  their  remedy  against  him  by  whose  default  the  penalty  was 
forfeited. 

Art.  2125. — When  the  primitive  obligation  contracted  under  a  pen- 
alty, is  divisible,  the  penalty  is  incurred  only  by  that  one  of  tlie  debtor's 
heirs  who  contravened  the  obligation,  and  only  for  tlie  part  for  which  he 
was  liable  in  the  principal  obligation,  no  action  lying  against  those  who 
have  executed  it. 

This  rule  has  an  exception,  when  the  penal  clause  having  been  added 
in  the  intention  that  the  payment  should  not  be  made  partially,  a  co-heir 
has  prevented  the  execution  of  the  obligation  for  the  whole. 

In  that  case  the  entire  penalty  may  be  exacted  of  him,  and  against 
the  other  co-heirs  only  for  their  part,  but  the  latter  have  their  recourse 
against  the  former. 

CHAPTER  V. 

OF    THE    MANNER    IN   WHICH    OBLIGATIONS    MAY    BE    EXTINGUISHED. 

Art.  2126. — Obligations  are  extinguished: 
By  payment ; 

9  L.  11. 
By  novation ; 
By  voluntary  remission ; 

4L.861. 

By  compensation ; 
By  confusion ; 
By  the  loss  of  the  thing ; 
By  nullity  or  rescission  ; 

By  the  effect  of  the  dissolving  condition,  which  has  been  explained 
in  the  preceding  chapter  ; 

By  prescription,  which  shall  be  treated,  of  in  a  subsequent  title. 


Section  I. —  Of  Payment. 

Art.  2127. — By  payment  is  meant,  not  only  the  delivery  of  a  sum 
of  money,  when  such  is  the  obligation  of  the  contract,  but  the  perform- 
ance of  that  which  the  parties  respectively  undertook,  whether  it  be  to 
give  or  to  do. 

Art.  2128. — He  who  is  bound  to  do,  or  not  to  do,  or  to  give,  is  in- 
differently called  the  obligor,  or  the  debtor ;  and  he  to  whom  the  obli- 
gation is  made,  is  in  like  manner  without  distinction  called  the  obligee 
or  the  creditor. 


289  OF  CONVENTIONAL  OBLIGATIONS.  289 

§  1. —  Of  Payment  or  Performance  in  general. 

Art.  2129. — Every  payment  presupposes  a  debt;  what  Las  been 
paid  ■without  having  been  due,  is  subject  to  be  rechumcd. 

That  cannot  be  reclaimed  that  has  been  voluntarily  given  in  dischargw 
of  a  natural  obligation.  , 

11  E.  502. 

Art.  2130. — An  obligation  may  be  discharged  by  any  person  con- 
cerned in  it,  such  as  a  co-obligee  or  a  security. 

The  obligation  may  even  be  discharged  by  a  third  person  no  way 
concerned  in  it,  provided  that  person  act  in  the  name  and  for  the  dis- 
charge of  the  debtor,  or  that,  if  he  act  in  his  own  name,  he  be  not  sub 
rogated  to  the  rights  of  the  creditor. 

3  L.  4T9 ;  5  A.  48. 

Art.  2131. — A  third  person  may,  for  the  advantage  of  the  obligor, 
put  the  obligee  in  deftxult,  by  ofifcring  to  perform  the  obligation  on  the 
part  of  the  debtor,  even  without  his  knowledge  ;  but  it  must  be  for  the 
advantage  of  the  debtor,  not  merely  to  change  the  creditor. 

Art.  2132. — The  obligation  of  doing  cannot  be  discharged  by  a  third 
person  against  the  will  of  the  creditor,  when  it  is  the  interest  of  the  lat- 
ter that  it  be  fulfilled  by  the  debtor  himself. 

Art.  2133. — But  where  the  act  to  be  done  may  as  well  be  performed 
by  the  third  person  who  offers  to  do  it,  as  by  the  obligor,  then  it  may  be 
discharged  by  him,  or  the  creditor  may  be  put  in  default  by  his  offer  to 
perform  it,  always  under  the  condition  that  some  advantage  may  result 
to  the  debtor,  or  that  the  offer  may  be  made  at  his  request. 

Art.  2134. — If  the  debtor  give  a  thing  in  payment  of  his  obliga- 
tion, which  he  has  no  right  to  deliver,  it  does  not  discharge  his  obliga- 
tion, and  the  owner  of  the  thing  given  may  reclaim  it  in  the  hands  of 
the  creditor,  unless  it  be  discharged  by  the  payment  of  money,  or  the  de- 
livery of  some  of  those  things  which  are  consumed  in  the  use,  and  the 
creditor  has  used  them,  in  which  cases  neither  the  money  nor  the  things 
consumed  can  be  reclaimed,  and  the  payment  will  be  good. 

See  10  R.  4S1. 

Art.  2135. — If  money,  or  other  stolen  property,  be  given  in  pay- 
ment, the  payment  is  not  good,  and  the  owner  may  recover  the  amount 
paid. 

Art.  2136. — The  payment  must  be  made  to  the  creditor,  or  to  some 
person  having  a  power  from  him  to  receive  it,  or  authorized  by  a  court, 
or  by  law  to  receive  it  from  him. 

Payment  made  to  a  person  not  having  power  to  receive  it  for  the  cre- 
ditor is  valid,  if  the  creditor  has  ratified  it,  or  has  profited  by  it. 

See  HE.  270. 

Art.  2137. — If  the  power  be  revoked,  either  expressly  or  by  the 
deatli  of  the  creditor,  payment  to  the  bearer  of  the  power  will  discharge 
the  debtor,  provided  he  were  ignorant  of  the  revocation. 

Art.  2138. — A  power  to  receive  payment  is  revoked,  as  well  by  such 
19 


290  OF  CONVENTIONAL  OBLIGATIONS. 

chan^'e  in  the  state  of  the  creditor  as  renders  him  incapable  himself  of 
legally  receiving,  as  by  his  death  or  express  revocation  ;  if  he  should  be- 
come interdicted,  or  (if  a  woman),  she  should  be  married,  the  powers 
given  before  these  changes  took  place,  are  void. 

Art.  2139. — A  payment  made  to  an  attorney  at  law,  employed  to 
sue  for  the  payment,  will  discharge  the  debtor,  although  the  attorney  be 
not  specially  empowered  to  receive  the  debt. 

18  L.  430;  Sec2N.  S.  292;  4N.  S.  145;  7N.  S.  a4;  8  N.  S.  284. 

Art.  2140. — If  the  authority  of  him  who  gave  the  power  ceases,  the 
power  is  revoked.  Thus  a  power  given  by  a  curator,  an  executor,  or  a 
tutor,  is  no  longer  valid,  after  they  cease  to  exercise  their  trust. 

Art.  2141. — Payments  in  general  can  legally  be  made  only  to  the 
creditor,  or  some  one  empowered  by  him.  The  debtor  however,  is  dis- 
charged by  a  pa3'ment  made  in  good  faith  to  one  who  is  really  not  the 
creditor,  and  is  not  empowered  by  him  in  tlie  following  cases  : 

1.  When  the  debt  is  due  on  an  instrument  in  writing,  payable  to  the 
bearer,  or  payable  to  order,  and  indorsed,  or  if  not  payable  to  the 
bearer,  if  it  be  assigned  in  blank,  or  to  bearer,  and  the  payment  is  made 
to  one  in  possession  of  the  original  evidence  of  the  debt ; 

2.  AVheu  the  person  to  whom  the  payment  has  been  made,  was  at  the 
time  in  possession  of  the  evidence  of  the  debt,  under  an  order  of  a  com- 
petent court,  as  syndic  or  trustee  of  creditors,  as  curator,  executor,  heir, 
or  by  virtue  of  any  office  or  other  trust,  that  apparently  gives  him  the 
power  to  receive  the  payment. 

3.  When  the  debt  accrues  for  rents  or  other  incidents  of  the  admi- 
nistration of  real  property,  or  for  the  sale  or  expenses  relative  to  per- 
sonal property,  of  which  the  person  is  in  possession  by  virtue  of  any  of 
the  titles  mentioned  in  the  last  preceding  rule,  or  where  he  has  been  Id 
the  uninterrupted  possession  of  such  real  property  for  more  than  one 
year  under  any  other  title. 

See  17  L.  236 ;  T  N.  3.  253 ;  4  L.  383. 

Art.  2142. — A  special  power  to  sell  includes  a  power  to  receive  the 
price,  unless  the  contrary  appear  from  the  power,  or  unless  the  power 
be  only  to  sell  on  a  credit,  in  which  case  the  attorney  has  no  right  to 
receive  the  price. 

Sec  2139. 

Art.  2143. — Payment  made  to  the  creditor  is  not  valid,  if  he  is  one 
of  those  whom  the  law  has  placed  under  an  incapacity  to  receive  it,  un- 
less the  debtor  prove  that  the  payment  was  applied  to  some  object  of 
utility  for  the  creditor ;  it  is  not  sufficient  if  it  was  applied  merely  to 
contribute  to  his  pleasure. 

Art.  2144. — But  if  the  incapacity  to  receive  arose  from  the  priva- 
tion of  civil  rights  by  the  effect  of  a  sentence,  then  the  payment  is  not 
good,  although  the  payment  were  applied  to  the  utility  of  the  creditor 

See  17  L.  23G. 


291  OF  CONVENTIONAL    OBLIGATIONS.  29 1 

Art.  2145. — Payment  made  by  a  debtor  to  liis  creditor,  to  the  pre- 
judice of  a  seizure  or  au  attacliunmt,  is  not  valid  with  regard  to  the 
creditors  seizing  or  attaching ;  those  may,  according  to  their  chiims, 
oblige  him  to  pay  anew,  and  he  has  in  that  case  alone  recourse  against 
the  creditor. 

6  A.  445. 

Art.  214G. — The  creditor  cannot  be  constrained  to  receive  any  other 
thing  than  that  which  is  due,  although  the  value  of  the  thing  tendered 
be  equal,  or  even  greater. 

Art.  2147. — But  if  the  thing  agreed  to  be  delivered,  be  a  specific 
object,  and  it  be  destroyed  before  the  time  agreed  for  its  delivery,  the 
debtor  may  be  forced  to  give,  and  the  creditor  to  receive,  the  value  of 
this  thing  in  money. 

Art.  2148. — In  the  case  provided  for  in  the  last  preceding  article, 
and  in  all  other  cases  where  the  value  of  the  thing  to  be  delivered  enters 
into  the  measure  of  damages,  its  price,  or  that  sum  for  which  others  of 
the  like  quality  could  have  been  purchased  at  the  time  agreed  on  for 
the  delivery,  is  to  be  the  rule  for  calculating  the  value ;  or,  if  no  time 
was  stipulated,  then  the  price,  at  the  time  of  the  demand,  must  be  re- 
ferred to. 

Art.  2149. — The  debtor  cannot  oblige  the  creditor  to  receive  in 
part  the  payment  of  a  debt,  even  divisible. 

7  N.  S.  519 ;  S  L.  53G ;  3  R.  4.32 ;  10  R.  25 ;  See  5  N.  S.  194 ;  See  210",  2612,  2024. 

Art.  2150. — But  if  the  sum  due  consists  of  several  different  debts, 
or  of  rents  fiilling  due  at  different  times,  the  debtor  may  force  the  cre- 
ditor to  receive  the  payment  of  one  of  the  debts,  or  of  a  single  term  of 
the  rent ;  but  a  creditor  is  not  obliged  to  receive  the  rent  of  a  later 
term,  when  there  is  a  former  due. 

Art.  2151. — The  debtor  of  a  certain  and  determinate  matter  is  dis- 
charged by  the  delivery  of  the  thing  in  the  state  in  which  it  is  at  the 
time  of  delivery,  provided  that  previously  to  the  deterioration,  he  was 
not  chargeable  with  delay. 

Art.  2152. — If  the  debt  be  of  a  thing  which  is  determined  only  by 
its  species,  the  debtor,  in  order  to  his  discharge,  is  not  bound  to  deliver 
it  of  the  best  kind,  but  he  cannot  tender  it  of  the  worst. 

Art.  2153. — The  payment  must  be  made  in  the  place  specified  in 
the  agreement.  If  the  place  be  not  thus  specified,  the  payment,  in  case 
of  a  certain  and  determinate  substance,  must  be  made  in  the  place  where 
was,  at  the  time  of  the  agreement,  the  thing  which  is  the  object  of  it. 

These  two  cases  excepted,  the  payment  must  be  made  at  the  dwelling 
of  the  debtor. 

3L.97. 

Art.  2154. — The  expenses  attending  the  payment  arc  at  the  charge 
of  the  debtor. 

§  2. —  Of  Payment  with  Subrogation. 

Art.  2155. — Subrogation  to  the  right  of  a  creditor  in  favor  of  a 
third  person  who  pays  him,  is  either  conventional  or  legal. 
Art.  2 1 56. — The  subrogation  is  conventional : 


292  *     OF  CONVENTIONAL  OBLIGATIONS. 

1.  When  the  creditor,  receiving  his  payment  from  a  third  person, 
subrogates  him  in  his  rights,  actions,  privileges,  and  mortgages  against 
the  debtor ;  this  subrogation  must  be  expressed,  and  made  at  the  same 
time  as  the  payment : 

See  IT  L.  161. 

2.  When  the  debtor  borrows  a  sum  for  the  purpose  of  paying  his 
debts,  and  intending  to  subrogate  the  lender  in  the  rights  of  the  credit- 
or. To  make  this  subrogation  valid,  it  is  necessary  that  the  act  of  bor- 
rowing and  the  receipt  be  executed  in  presence  of  a  notary  and  two  wit- 
nesses ;  that,  in  the  act  of  borrowing,  it  be  declared  that  the  sum  was 
borrowed  to  make  the  payment,  and  that  in  the  receipt  it  be  declared 
that  the  payment  has  been  with  the  money  furnished  for  that  purpose 
by  the  new  creditor.  That  subrogation  takes,  place  independently  of 
the  will  of  the  creditor. 

11  L.  Sai ;  13  L.  290,  3S0 ;  15  L.  3S5 ;  19  L.  2:35 ;  11  E.  270,  346  ;  9  R.  405,  414. 

Art.  2157. — Subrogation  takes  place  of  right : 

1.  For  the  benefit  of  him  who,  being  himself  a  creditor,  pays  another 
creditor,  whose  claim  is  preferable  to  his,  by  reason  of  his  privileges  or 
mortgages : 

6E.  82S:  2  A.  4S0. 

2.  For  the  benefit  of  the  purchaser  of  any  immovable  property,  who 
employs  the  price  of  his  purchase  in  paying  the  creditors  to  whom  the 
hereditament  was  mortgaged ; 

15L.3S9;  See  2586. 

3.  For  the  benefit  of  him  who,  being  bound  with  others,  or  for  others, 
for  the  payment  of  the  debt,  had  an  interest  in  discharging  it ; 

11  L.  52 ;  15  L.  214,  351 ;  6  E.  328 ;  3  A.  66 ;  See  3  L.  479 ;  IT  L.  161. 

4.  For  the  benefit  of  the  beneficiary  heir,  who  has  paid  with  his  own 
funds  the  debts  of  the  succession. 

Art.  2158. — The  subi'ogation  established  by  the  preceding  articles, 
takes  place  as  well  against  the  securities,  as  against  the  debtors.  It 
cannot  injure  the  creditor,  since,  if  he  has  been  paid  but  in  part,  he  may 
exercise  his  right  for  what  remains  due,  in  preference  to  him  from  whom 
he  has  received  only  a  partial  payment. 

§  3. —  Of  the  Imputation  of  Payments. 

Art.  2159. — The  debtor  of  several  debts  has  a  right  to  declare, 
when  he  makes  a  payment,  what  debt  he  means  to  dischai'go. 

Art.  2160. — The  debtor  of  a  debt  which  bears  interest  or  produces 
rents,  cannot,  without  the  consent  of  the  creditor,  impute  to  the  reduc- 
tion of  the  capital  any  payment  he  may  make,  when  there  is  interest  or 
rent  due. 

10  E.  51 ;  2  A.  S63,  520. 

Art.  2161. — When  the  debtor  of  several  debts  has  accepted  a  re- 
ceipt, by  which  the  creditor  has  imputed  what  he  has  received  to  one 
of  the  debts  specially,  the  debtor  can  no  longer  require  the  imputation 
to  be  made  to  a  different  debt,  unless  there  have  been  fraud  or  surprise 
on  the  part  of  the  creditor. 

5  A.  569 ;  See  7  N.  S.  229. 

Art.  2162. — When  the  receipt  bears  no  imputation,  the  payment 


293  OF  CONVENTIONAL  OBLIGATIONS.  ZDc 

must  be  imputed  to  the  debt,  which  the  debtor  had  at  the  time  most  in- 
terest in  discharging,  of  those  that  ai-e  equally  due,  otherwise  to  the  debt 
which  has  fallen  due,  though  less  burdensome  than  those  which  are  not 
yet  payable. 

If  the  debts  be  of  a  like  nature,  the  imputation  is  made  to  the  less 
burdensome ;  if  all  things  are  equal,  it  is  made  proportionally. 

10  L.  232;  12  L.  1 ;  2  A.  3C3;  3  A.  351 ;  5  A.  509;  See  10  L.  352. 


§  4. —  Of  Tenders  of  Payment  and  Consignment. 

Art.  2163. — When  the  creditor  refuses  to  receive  his  payment,  the 
debtor  may  make  him  a  real  tender,  aiul  on  the  creditor's  refusal  to  ac- 
cept it,  he  may  consign  the  thing  or  the  sum  tendered. 

A  real  tender,  followed  by  a  consignment,  exonerates  the  debtor ; 
it  has  the  same  effect,  with  regard  to  him,  as  a  payment,  when  it  is 
validly  made ;  and  the  tiling  thus  consigned  remains  at  the  risk  of  the 
creditor. 

6  A.  13;  See  4  L.  04. 

Akt.  2164. — To  make  a  real  tender  valid,  it  is  necessary: 

1.  That  it  be  made  to  the  creditor  having  capacity  to  receive  it : 

2.  That  it  be  made  by  a  person  capable  of  paying ; 

3.  That  it  be  for  the  whole  of  the  sum  demanded,  of  the  arrearages 
or  interest  due,  for  the  liquidated  costs,  and  for  a  sum  towards  the  costs 
not  liquidated,  the  deficit  of  which  sum  is  hereafter  to  be  made  up ; 

4.  That  the  term  be  expired,  if  it  has  been  stipulated  in  favor  of  the 
creditor ; 

5.  That  the  condition,  on  which  the  debt  has  been  contracted,  be  ful- 
filled; 

6.  That  the  tender  be  made  in  the  place  agreed  upon  for  the  payment, 
or  that,  if  there  be  no  special  agreement  as  to  tlie  place  of  payment,  it 
be  made  either  to  the  creditor  himself,  or  at  his  dwelling,  or  at  the  house 
chosen  for  the  execution  of  the  agreement. 

Art.  2165. — The  mode  in  which  a  tender  and  consignment  must  be 
made,  is  pointed  out  in  the  laws  regulating  the  practice  of  the  courts. 


§  5. — Of  the  Cession  of  rvoperty. 

Art.  2166. — The  surrender  of  property  is  the  relinquishment  that  a 
debtor  makes  of  all  his  property  to  his  creditors,  when  he  finds  himself 
unable  to  pay  his  debts. 

See  9  R.  372. 

Art.  2167. — The  surrender  of  property  is  voluntary  or  forced. 

Art.  2168. — The  voluntary  surrender  of  property  is  that  which  is 
made  at  the  desire  of  the  debtor  himself. 

The  forced  surrender  is  that  which  is  ordered  at  the  instance  of  the 
creditors  of  the  debtor,  or  some  of  them,  in  cases  provided  for  by  law. 

Art.  2169. — Both  those  kinds  of  surrender  are  subject  to  formalities, 
which  arc  prescribed  by  special  laws. 

Art.  2170. — The  voluntary  surrender  is  a  benefit,  which  the  law 
grants  to  the  honest  but  unfortunate  debtor,  by  which  he  is  permitted  to 


294  OF  CONVENTIOXAL  OBLIGATIONS. 

secure  the  liberty  of  his  person  by  surrendering  in  a  judicial  manner,  all 
bis  property  to  his  creditors,  any  stipulation  to  the  contrary  notwith- 
standintj. 

Ai:t.  2171. — The  surrender  docs  not  give  the  property  to  the  cred- 
itors :  it  only  gives  them  the  right  of  selling  it  for  their  benefit,  and  re- 
ceiving tlie  income  of  it,  till  sold. 

Stat.  29th  3Iarch,  1 826,  p.  1 36. — ^  2.  From  and  after  such  cession  and 
acceptance  all  the  property  of  such  insolvent  debtor  mentioned  in  said 
scliedule  shall  be  fully  vested  in  his  creditors,  and  shall  not  be  liable  to 
be  seized,  attached,  taken  or  levied  on,  by  virtue  of  any  writ  of  seizure, 
attachment,  or  execution,  issued  against  the  property  of  tlie  said  insol- 
vent debtor,  and  the  syndic  or  syndics  -who  may  be  appointed  by  the 
creditors  shall  take  possession  of,  and  be  entitled  to  claim  and  recover 
all  the  said  property,  and  to  administer  and  sell  the  same,  as  is  provided 
by  the  act  to  which  this  is  a  supplement.  Provided  /ioivcvcr,  that  noth- 
ing in  this  act  contained,  shall  be  so  construed  as  to  prevent  an  insolvent 
debtor,  at  any  time  before  the  homologation,  or  the  deliberation  of  the 
creditors,  appointing  syndics  and  fixing  the  manner  of  disposing  of  the 
property  surrendered,  from  revoking  the  said  cession,  and  taking  back 
all  his  said  property  surrendered,  all  which  he  shall  be  authorized  to  do 
on  his  depositing  in  court  a  sum  of  money  sufficient  to  cover  all  the  debts 
due  by  him  according  to  his  said  schedule,  together  with  all  the  costs 
until  then  made  and  incurred :  and  provided  also,  that  if,  after  all  the 
creditors  shall  have  been  paid  out  of  the  property  ceded  as  aforesaid, 
thei*e  remain  a  balance  in  the  hands  of  the  syndics,  the  said  debtor  shall 
be  entitled  to  recover  and  receive  from  the  said  syndics  the  said  balance. 

2  L.  .864. 

Art.  2172. — The  creditors  cannot  refuse  the  surrender  made  accord- 
ing to  the  forms  ordained  by  law,  unless  in  case  of  fraud  on  the  part  of 
the  debtor. 

It  operates  the  discharge  of  the  restraint  of  the  debtor's  person,  and 
delivers  him  from  actual  imprisonment. 

It  also  suspends  all  kinds  of  judicial  process  against  the  debtor. 

2  L.  503 ;  See  11  L.  C5. 

Art.  2173. — A  cession  of  property  discharges  all  the  debts,  which 
the  debtor  placed  on  his  bilan,  including  tho.^e  arising  from  off"ences  and 
quasi-oflFences,  provided  a  majority  of  his  creditors  in  number,  and  who 
are  also  creditors  for  more  than  the  half  of  the  whole  sum  due  by  him, 
agree  to  such  discharge.  But  if  such  consent  be  not  obtained,  any  one 
of  his  creditors  may  afterwards  force  a  new  cession,  on  showing  that  the 
debtor  has  acquired  property  over  and  above  what  is  necessary  for  his 
maintenance.  But  on  such  new  cession,  the  creditors,  who  have  become 
such  since  the  first  cession,  must  be  paid  in  preference  to  the  others. 

10  K.  48 ;  11  r.  1G6 ;  8  A.  501 ;  See  1  L.  174;  4  L.  44. 

Art.  2174. — As  the  debtor  preserves  his  ownership  of  the  property 
surrendered,  lie  may  divest  the  creditors  of  their  possession  of  the  same, 
at  any  time  before  they  have  sold  it,  by  paying  the  amount  of  his  debts, 
with  the  expenses  attending  the  cession. 

Seo  2171  and  amendment 


295  OF  CONVENTIONAL  OBLIGATIONS.  '^5 

Art.  2175. — Any  surplus,  that  may  "be  in  the  hands  of  the  creditors, 
or  their  syndics,  or  other  agents,  after  paying  the  debts  and  expenses, 
must  be  paid  over  to  the  debtor. 

Art.  217G. — The  property  surrendered  forms  a  part  of  the  succes- 
sion of  the  debtor,  if  he  should  die  before  the  sale  ;  but  the  creditors  are 
entitled  to  retain  the  possession  and  to  sell,  in  the  same  manner  as  they 
were  before  the  death  of  the  debtor. 

9  R.  219. 

Art.  2177. — The  creditors  of  tliose,  in  whose  favor  a  cession  or  sur- 
render of  property  has  been  made,  even  when  they  have  a  general  mort- 
gage, cannot  enforce  it  against  the  property  surrendered ;  but  they  may 
seize  the  credits  against  the  ceded  estate  on  execution,  and  in  cases  where 
such  proceeding  is  allowed,  may  attach  them. 

Art.  2178. — The  creditors  can  never  prescribe  by  any  lapse  of  time, 
so  as  to  gain  a  property  in  the  estate  ceded. 

Art.  2179. — The  debtor  is  not  obliged  to  comprehend  in  his  surren- 
der any  property  that  is  not  subject  to  be  seized  and  sold  on  execution 
against  him,  but,  with  this  exception,  all  his  property  must  be  surren- 
dered. 

Art.  2180. — All  8ales  of  property  ceded  to  creditors  must  be  made 
on  the  same  teimis  and  under  the  same  formalities  that  property  seized 
on  execution  is  sold ;  but  the  sale  is  made  by  the  syndics,  or  some  per- 
son appointed  by  them,  at  public  auction. 

t^tat.  29th  March,  182G,  p.  136. — ^  3.  The  property  ceded,  excepting 
incorporeal  rights,  shall  be  sold  by  public  auction,  at  such  times  and 
places,  and  upon  such  terms  and  conditions,  as  may  be  determined  by 
the  creditors,  according  to  the  provisions  of  the  act  to  which  this  is  a 
supplement :  and  that  incorporeal  rights,  actions  and  credits  may  also 
be  sold  by  public  auction,  by  virtue  only  of  an  order  of  the  court,  before 
which  the  proceedings  are  depending,  to  be  made  upon  the  petition  of 
the  syndics,  setting  forth  the  reasons  which  may  render  such  mode  of 
disposition  advisable. 

7N.S.1S3;  3  A.  826. 


Section  II. — Of  Novation. 

Art.  2181. — Novation  is  a  contract,  consisting  of  two  stipulations, 
one  to  extinguish  an  existing  obligation,  the  other  to  substitute  a  new 
one  in  its  place. 

Art.  2182. — To  constitute  a  novation,  there  must  be,  at  the  time  it 
is  made,  a  valid  obligation  on  which  it  can  operate,  if  the  first  obligation, 
whidi  it  is  intended  to  replace  by  the  new  one,  be  void,  or,  if  tliere  be 
no  such  obligation,  then  the  new  obligation  is  of  no  effect. 

Art.  2183. — The  pre-cxistent  obligation  must  be  extinguished,  oth- 
erwise there  is  no  novation ;  if  it  be  only  modified  in  some  parts,  and 
any  stipulation  of  the  original  obligation  be  suflfered  to  remain,  it  is  no 
novation. 

Seo  1  n  mi. 

Ar  r.  2 1 84. — All  kinds  of  legal  obligations  are  subject  to  novation. 


296  OF  CONVEXTIOXAL  OBLIGATIONS. 

Art,  2185. — Novation  takes  place  in  three  ways: 

1 .  When  a  debtor  contracts  a  new  debt  to  his  creditor,  which  new 
debt  is  substituted  to  the  old  one,  which  is  extinguished ; 

1  A.  410. 

2.  "When  a  new  debtor  is  substituted  to  the  old  one,  who  is  dischargeti 
by  the  creditor : 

16  L.  476. 

3.  When  by  the  eflPect  of  a  new  engagement,  a  new  creditor  is  sub 
stituted  to  the  old  one,  with  regard  to  whom  the  debtor  is  discharged. 

Art.  2186. — Novation  can  be  made  only  by  persons  capable  of  con- 
tracting ;  it  is  not  presumed ;  the  intention  to  make  it  must  clearly  re- 
sult from  the  terms  of  the  agreement,  or  by  a  full  discharge  of  the  ori- 
ginal debt. 

3N.  S.  145;  7N.  S.  177;  4L.  477;  HE.  9;  2  A.  1S8. 

Art.  2187. — Novation  by  the  svibstitution  of  anew  debtor,  may  take 
place  without  the  concurrence  of  the  former  debtor. 

Art.  2188. — The  delegation,  by  which  a  debtor  gives  to  the  creditor 
another  debtor  who  obliges  himself  towards  such  creditor,  does  not  ope- 
rate a  novation,  unless  the  creditor  has  expressly  declared  that  he  in- 
tends to  discharge  his  debtor  who  has  made  the  delegation. 

9  L.  216,  223 ;  16  L.  476 ;  1  R.  301 ;  11  R.  511 ;  4  A.  509. 

Art.  2189. — The  creditor,  who  has  discharged  the  debtor  by  whom 
a  delegation  has  been  made,  has  no  recourse  against  the  debtor,  if  the 
person  delegated  becomes  insolvent,  unless  that  act  contains  an  express 
reservation  to  that  purpose,  or  unless  the  delegated  person  was  in  a  state 
of  open  failure  or  insolvency  at  the  time  of  the  delegation. 

1  E.  801. 

Art.  2190. — The  mere  indication  made  by  a  debtor  of  a  person  who 
is  to  pay  in  his  place,  does  not  operate  a  novation. 

The  same  is  to  be  observed  of  the  mere  indication  made  by  the  cre- 
ditor of  a  person  who  is  to  receive  for  him. 

16  L.  476;  11  E.  511. 

Art.  2191. — The  privileges  and  mortgages  of  the  former  credit  are 
not  transferred  to  that  which  is  substituted  to  it,  unless  the  creditor  has 
expressly  reserved  them. 

Art.  2192. — When  novation  takes  place  by  the  substitution  of  anew 
debtor,  the  original  privileges  and  mortgages  of  the  creditor  cannot  be 
transferred  on  the  property  of  the  new  debtor. 

Art.  2193. — AVhen  novation  talces  place  between  the  creditor  and 
one  of  the  debtors  i?i  soHdo,  the  privileges  and  mortgages  of  the  former 
credit  can  be  reserved  only  on  the  property  of  him  who  contracts  the 
new  debt. 

Art.  2194. — By  the  novation  made  between  the  creditor  and  one  of 
the  debtors  iti  solido,  the  co-debtors  are  discharged. 

The  novation  that  takes  place  with  regard  to  the  principal  debtor, 
discharges  the  securities. 

Nevertheless,  if  the  creditor  has'  required,  in  the  first  case,  the  ac- 
cession of  the  co-debtors,  or  in  the  second,  that  of  the  securities,  the  for- 


297  OF  CONVENTIONAL  OBLIGATIONS.  297 

mer  credit  subsists,  if  the  co-debtors  or  the  securities  refuse  to  accede  to 
the  new  arrangement. 

10  E.  2S1,  421 ;  Sco  3032. 


Section  III. — Of  the  Remission  of  the  Debt. 

Art.  2195. — The  remission  of  the  debt  is  cither  conventional,  when 
it  is  expressly  granted  to  the  debtor  by  a  creditor  having  a  capacity  to 
alienate ; 

Or  tacit,  when  the  creditor  voluntarily  surrenders  to  his  debtor  the 
original  title  under  private  signature  constituting  the  obligation. 

4  L.  359 ;  1  A.  192. 

Art.  2196. — The  surrender  of  the  original  title  under  private  signa- 
ture to  one  of  the  debtors  in  solido,  forms  a  presumption  of  the  remission 
of  the  debt,  or  of  its  payment,  in  favor  of  his  co-debtors  ;  but  proof  may 
be  adduced  to  the  contrary. 

Art.  2197. — The  release  or  remission  of  a  debt  is  presumed  always 
to  have  been  accepted  by  the  debtor,  and  it  cannot  be  revoked  by  the 
creditor. 

Art.  2198. — The  delivery  to  the  debtor  of  the  authenticated  copy 
of  a  notarial  act,  by  which  the  obligation  is  created,  does  not  alone  form 
a  presumption  of  the  release  of  the  debt,  but  it  may,  when  accompanied 
by  other  proof,  form  such  presumption. 

Art.  2199. — The  remission  or  conventional  discharge  in  favor  of  one 
of  the  co-debtors  in  soHdo,  discharges  all  the  others,  unless  the  creditor 
has  expressly  reserved  his  right  against  the  latter. 

In  the  latter  case,  he  cannot  claim  the  debt  without  making  a  deduc- 
tion of  the  part  of  him  to  whom  he  has  made  the  remission. 

2  A.  ISG. 

Art.  2200. — The  remission  of  the  thing,  given  as  a  pledge,  does  not 
suffice  to  raise  a  presumption  of  the  remission  of  the  debt. 

IS  L.  414. 

Art.  2201. — The  remission  or  even  conventional  discharge  granted 
to  a  principal  debtor,  discharges  the  securities. 

That  granted  to  the  securities  does  not  discharge  the  principal 
debtor ; 

That  granted  to  one  of  the  securities  does  not  discharge  the  others. 

Art.  2202. — What  the  creditor  has  received  from  one  of  the  securi- 
ties, in  discharge  of  his  suretyship,  must  be  imputed  to  the  debt,  and 
goes  towards  the  discharge  of  the  principal  debtor  and  the  other  secu- 
rities. 

Section  IV. — Of  Cojnpensation. 

Art.  2203. — When  two  persons  are  indebted  to  each  other,  there 
takes  place  between  them  a  compensation  that  extinguishes  both  the  debts, 
in  the  manner  and  cases  hereafter  expressed. 

3  A.  47 ;  4  A.  157. 

Art.  2204. — Compensation  takes  place  of  course  by  the  mere  opera- 
tion of  law,  even  unknown  to  the  debtors ;  the  two  debts  are  reciprocally 


298  OF  CONVENTIONAL  OBLIGATIONS. 

extinguished,  as  soon  as  they  exist  simultaneously,  to  the  amount  of 
their  respective  sums. 

SL.158;  10  K.  196;  12  E.  398. 

Art.  2205. — Compensation  takes  place  only  between  two  debts,  hav- 
ing equally  for  their  object,  a  sum  of  money,  or  a  certain  quantity  of 
consumable  things  of  one  and  the  same  kind,  and  which  are  equally  liqui- 
dated and  demandable. 

3L.  511;  8L  153;  lOE.  45;  12  E.  393;  2  A.  546;  8  ^V.  61T;  5  A  160,551. 

Art.  2206. — The  days  of  grace  are  no  obstacle  to  the  compensation. 
Art.  2207. — Compensation  takes  place,  whatever  be  the  causes  of 
either  of  the  debts,  except  in  case  : 

1.  Of  a  demand  of  restitution  of  a  thing  of  which  the  owner  has  been 
unjustly  deprived ; 

2.  Of  a  demand  of  restitution  of  a  deposit  and  of  a  loan  for  use  ; 

3.  Of  a  debt  which  has  for  its  cause,  aliments  declared  not  liable  to 
seizure. 

8  L.  511 ;  2  A.  24;  3  A.  514 ;  6  A.  46.  210. 

Art.  2208. — The  surety  may  oj^pose  the  compensation  of  what  tho 
creditor  owes  to  the  principal  debtor. 

But  the  principal  debtor  cannot  oppose  the  compensation  of  what  the 
creditor  owes  to  the  surety. 

Neither  can  the  debtor  in  solido  oppose  the  compensation  of  what  the 
creditor  owes  to  his  co-debtor. 

Art.  2209. — The  debtor,  who  has  accepted  purely  and  simply  the 
transfer  which  a  creditor  has  made  of  his  rights  to  a  third  person,  can 
no  longer  oppose  to  the  latter  the  compensation  which,  before  the  accept- 
ance, he  might  have  opposed  to  the  former. 

As  to  the  transfer  which  has  not  been  accepted  by  the  debtor,  but 
which  has  been  notified  to  him,  it  hinders  only  the  compensation  of 
credits  posterior  to  that  notification. 

Art.  2210. — When  the  two  debts  are  not  payable  both  at  one  and 
the  same  place,  the  compensation  of  them  cannot  be  opposed,  without 
allowing  for  the  expense  of  the  remittance. 

Art.  2211. — When  there  are  several  compensable  debts,  due  by  the 
same  person,  the  same  rules  are  observed  for  the  compensation,  as  are 
established  for  imputation  in  article  21G2. 

Art.  2212. — Compensation  cannot  take  place  to  the  prejudice  of  the 
rights  acquired  by  a  third  person ;  therefore,  he,  who  being  a  debtor,  is 
become  creditor  since  the  attachment  made  by  a  third  person  in  his 
hands,  cannot,  in  prejudice  to  the  person  seizing,  oppose  compensation. 

Art.  2213. — He  who  has  paid  a  debt  which  was  of  right  extin- 
guished  by  compensation,  can  no  longer,  in  exercising  the  credit  which 
he  has  not  oifered  in  compensation,  avail  himself,  to  the  prejudice  of  a 
third  person,  of  the  privileges  and  mortgages  that  were  attached  to  it, 
unless  he  had  a  just  cause  to  be  ignorant  of  the  credit  which  was  to 
compensate  his  debt. 


299  OF  CONVENTIONAL  OBLIGATIONS.  299 

Section  V. — Of  Co)ifusion. 

Art.  2214. — When  the  qualities  of  debtor  and  creditor  are  united 
in  the  same  person,  there  arises  a  confusion  of  right,  which  extinguishes 
the  two  credits. 

3  L.  552 ;  Sec  4  K.  416 ;  See  8252,  8374. 

•Art.  2215. — The  confusion  that  takes  place  in  the  person  of  the 
principal  debtor,  avails  his  sureties. 

That  which  takes  place  in  the  person  of  the  surety,  does  not  operate 
the  extinction  of  the  principal  obligation. 

That  which  takes  place  in  the  person  of  the  creditor,  avails  his  co- 
debtors  in  solido,  only  for  the  portion  in  which  he  was  debtor. 

3  L.  552. 

Section  VI. — 0/  the  Loss  of  the  Thi?ig  Due. 

Art.  2216. — When  the  certain  and  determinate  substance,  which 
was  the  object  of  obligation,  is  destroyed,  is  rendered  unsalable,  or  is 
lost,  so  that  it  is  absolutely  not  known  to  exist,  the  obligation  is  extin- 
guished, if  the  thing  has  been  destroyed  or  lost,  without  the  fault  of  the 
debtor,  and  before  he  was  in  delay. 

Even  when  the  debtor  is  in  delay,  if  he  has  not  taken  upon  himself 
fortuitous  accidents,  the  obligation  is  extinguished,  in  case  the  thing 
might  have  equally  been  destroyed  in  the  possession  of  the  creditor,  if 
it  had  been  delivered  to  him.  • 

The  deJ^tor  is  bound  to  prove  the  fortuitous  accidents  he  alleges. 

In  whatever  manner  a  thing  stolen  may  have  been  destroyed  or  lost, 
its  loss  does  not  discharge  the  j^crson,  who  carried  it  off,  from  the  obli- 
gation of  restoring  its  value. 

Art.  2217. — When  the  thing  is  destroyed,  rendered  unsalable,  or 
lost,  without  the  fault  of  the  debtor,  he  is  bound,  if  he  has  any  claim 
or  action  for  indemnification,  on  account  of  that  thing,  to  make  over  the 
same  to  the  creditor. 


Section  VII. —  Of  the  Action  of  Nullity  or 'of  Rescission  of  Agree- 
ments. 

Art.  2218. — In  all  cases,  in  which  the  action  of  nullity  or  of  rescis- 
sion of  an  agreement,  is  not  limited  to  a  shorter  period  by  a  particular 
law,  that  action  may  be  brought  within  ten  years. 

That  time  commences  in  case  of  violence,  only  from  the  day  on 
whicli  the  violence  has  ceased ;  in  case  of  error  or  deception,  from  the 
day  on  which  either  was  discovered  ;  and  for  acts  executed  by  married 
women  not  authorized,  from  the  day  of  the  dissolution  of  the  marriage 
or  of  the  separation. 

With  regard  to  acts  executed  by  persons  under  interdiction,  the 
time  commences  only  from  the  day  that  the  interdiction  is  taken  off; 
and  with  regard  to  acts  executed  by  minors,  only  from  the  day  on  which 
they  become  of  age. 

7  R.  38T;  2  A.  443;  8  A.  533;  8e«  4  L.  868^  6  L.  161,  606:  Sec  860r. 


300  OF  CONVENTIONAL  OBLIGATIONS. 

Art.  2219. — A  simple  lesion  gives  occasion  to  rescission,  in  favor 
of  a  minor  not  emancii^ated,  against  all  sorts  of  engagements  ;  and  in 
favor  of  a  minor  emancipated,  against  all  engagements  exceeding  the 
hounds  of  his  capacity,  as  is  laid  down  under  the  title  of  'minors,  and 
of  their  tutorship,  &c. 

Art.  2220. — A  minor  is  not  restituable  (cannot  be  relieved  against 
his  engagements)  on  the  plea  of  lesion,  when  it  proceeds  only  from  a 
casual  and  unforeseen  event. 

Art.  2221. — The  mere, declaration  of  majority  made  by  a  minor,  is 
no  obstacle  to  his  restitution. 

Art.  2222. — A  minor,  carrying  on  commerce,  or  being  an  artisan, 
is  not  restituable  against  the  engagements  into  which  he  has  entered 
in  the  way  of  his  business  or  art. 

15L.  U;  2R.  513;  2  A.  39S. 

Art.  2223. — A  minor  is  not  restituable  against  the  engagements 
stipulated  in  his  marriage  contract,  if  they  were  entered  into  with  the 
consent  or  in  the  presence  of  those  whose  consent  is  requisite  for  the 
validity  of  his  marriage. 

Art.  2224. — He  is  not  restituable  against  the  obligations  resulting 
from  his  offences  or  quasi  offences. 

Art.  2225. — He  cannot  make  void  the  engagement  which  he  had 
subscribed  in  his  minority,  when  once  he  has  ratified  it  in  his  majority, 
whether  that  engagement  was  null  in  its  form,  or  whether  it  was  only 
subject  to  restitution. 

6  K.  429. 

Art.  2226. — When  minors,  persons  under  interdiction,  or  married 
women  are  admitted,  in  these  qualities,  to  the  benefit  of  restitution 
against  their  engagements,  the  reimbursement  of  what  may  have  been 
paid,  in  consequence  of  those  engagements,  during  minority,  interdiction, 
or  marriage,  cannot  be  required  of  them,  unless  it  be  proved  that  what 
was  paid,  accrued  to  their  benefit. 

Art.  2227. — Persons  of  the  age  of  majority  cannot  receive  the  ben 
efit  of  restitution  on  account  of  lesion,  except  in  cases  and  under  condi- 
tions specially  expressed  by  law. 

Art.  2228. — When  the  formalities  required  with  regard  to  minors 
or  persons  under  interdiction,  either  for  the  alienation  of  immovable 
property,  or  in  a  partition  of  a  succession,  have  been  complied  with, 
they  are  considered,  as  to  these  acts,  as  though  they  had  executed  them 
being  of  full  age  or  before  interdiction. 

CHAPTER  VI. 

OF  THE  PROOF  OF  OBLIGATIONS  AND  OF  THAT  OF  PAYMENT. 

Art.  2229. — He  who  claims  the  execution  of  an  obligation  must 
prove  it. 

On  the  other  hand,  he  who  contends  that  he  is  exonerated,  must 
prove  the  payment  or  the  fact  which  has  produced  the  extinction  of  the 
obligation. 

Art.  2230. — The  rule  which  concerns  the  literal  proof,  the  testimo- 
nial proof,  the  presumption,  the  confession  of  the  party,  and  the  oath, 
are  explained  in  the  following  sections. 


301  OF  CONVENTIONAL  OBLIGATIONS.  3(X 

Section  I. —  Of  the  Literal  Proof. 

^l.— Of  Authentic  Acts. 

Art.  2231 — The  authentic  act,  as  relates  to  contracts,  is  that  which 
has  been  executed  before  a  notary  public  or  other  oflBcer  authorized  to 
execute  such  functions,  in  presence  of  two  witnesses,  free,  male,  and 
aged  at  least  of  fourteen  years,  or  of  three  witnesses,  if  the  party  be 
blind.  If  the  party  docs  not  know  how  to  sign,  the  notary  must  cause 
him  to  affix  his  mark  to  the  instrument. 

Stat.  2d  March,  1852,  p.  80.—^  1.  All  proces  verbals  of 
sales  of  succession  property,  signed  by  the  sheriff  or  auctioneer  making 
the  same,  by  the  purcha.ser  and  two  witnesses,  are  declared  to  be  authentic 
acts  for  all  intents  and  purposc^M. 

16  L.  5W;  10  R.  80 ;  1  A.  323;  2  A.  41S  ;  See  12  R.  210. 

Art.  2232. — An  act  which  is  not  authentic,  through  the  incompe- 
tence or  the  incapacity  of  the  officer,  or  through  a  defect  of  form,  avails 
as  a  private  writing,  if  it  be  signed  by  the  parties. 

12  R.  210 ;  2  A.  418;  See  10  L.  804. 

Art.  2233. — The  authentic  act  is  full  proof  of  the  agreement  con- 
tained in  it,  against  the  contracting  parties  and  their  heirs  or  assigns, 
unless  it  be  declared  and  proved  a  forgery. 

3  L.  422. 

Art.  2234. — The  acknowledgment  of  payment,  made  in  an  authentio 
act,  cannot  be  contested,  under  pretence  of  the  exception  of  nod  ?inme- 
rata  jjeciinid,  which  is  hereby  abolished. 

11  L.  416 ;  13  L.  9;  See  18  L.  847. 

Art.  2235. — An  act,  whether  authentic  or  under  private  signature, 
is  proof  between  the  parties,  even  of  what  is  there  expressed  only  in 
enunciative  terms,  provided  the  enunciation  have  a  dii-ect  reference  to 
the  disposition. 

Enunciations  foreign  to  the  disposition,  can  serve  only  as  a  com- 
mencement of  proof. 

18  L.  9 ;  16  L.  592. 

Art.  2236. — Counter-letters  can  have  no  effect  against  creditors,  or 
bond  fide  purchasers ;  they  are  valid  as  to  all  others. 

13  L.  9. 

§  2. —  Of  Acts  wider  Private  Signature. 

Art.  2237. — All  acts  may  be  executed  under  private  signature, 
except  such  as  positive  laws  have  ordained  to  be  passed  in  presence  of  a 
notary. 

See  12  R.  210. 

Art.  2238. — It  is  not  necessary  that  those  acts  be  written  by  the 
contracting  parties,  provided  they  be  signed  by  them. 

See  12  R.  210. 

Art,  2239. — An  act  under  private  signature,  acknowledged  by  the 
party  against  whom  it  is  adduced,  or  legally  held  to  be  acknowledged, 
has,  between  those  who  have  subscribed  it,  and  their  heirs  and  assigns, 
the  same  credit  as  an  authentic  act. 


302  OF  CONVENTIONAL  OBLIGATIONS. 

Art.  2240. — The  person,  against  whom  an  act  under  piivale  signa 
ture  is  produced,  is  obliged  formally  to  avow  or  disavow  his  signature. 

The  heirs  or  assigns  may  simply  declare,  that  they  know  not  the 
handwriting  or  the  signature  of  the  person  they  represent. 

1  A.  825 ;  See  S  N.  S.  297 ;  1  L.  486. 

Art.  2241. — If  the  party  disavow  the  signature,  or  the  heirs  or 
other  representatives  declare  that  they  do  not  know  it,  it  must  be  proved 
by  witnesses  or  comparison,  as  in  other  cases. 

9  L.  56-3 ;  13  L.  142 ;  15  L.  179 ;  2  A.  217. 

Art.  2242. — Sales  or  exchanges  of  real  property  and  slaves,  by 
instruments  made  under  private  signature,  are  valid  against  hondjide 
purchasers  and  creditors,  only  from  the  day  on  which  they  are  registered 
in  the  office  of  a  notary,  or  from  the  time  of  the  actual  delivery  of  the 
thing  sold  or  exchanged. 

8  N.  &  186 ;  3  L.  160 ;  16  L.  433,  442,  454 ;  13  L.  17 ;  12  R.  210 ;  1  A.  249 ;  2  A.  912 ;  See  1771,  2417 

Art.  2243. — Sales  or  exchanges  of  personal  property  are  void 
against  bona  fide  purchasers  and  creditors,  unless  possession  is  given 
before  such  bond  fide  purchaser  or  creditor  acquires  his  right  by  pos- 
session. What  is  a  delivery  of  possession  depends  on  the  nature  of  the 
property  ;  it  may  be  constructive  or  actual ;  the  delivery  of  the  key  of 
a  store  in  which  it  is  contained,  or  an  order  accepted  by  the  person  in 
whose  custody  it  is  held,  if  at  the  order  of  the  vendor,  is  good  evidence 
of  delivery. 

3M.  862;  4M.25;  7M.  24;  9M.  403;  12L.  3T5;  IR.  26;  3  R.  831 ;  12K.  51;  1  A.  59. 

Art.  2244. — The  books  of  merchants  cannot  be  given  in  evidence 
in  their  favor ;  they  are  good  evidence  against  them,  but  if  used  as 
evidence,  the  whole  must  be  taken  together. 

3M.  188;  2N.S.  509;  4N.  S.  883;  12  R. 407;  2  A.  24. 

Art.  2245. — Domestic  books  and  papea-s  are  no  proof  in  favor  of 
him  who  has  written  them  ;  they  are  proofs  against  him  : 

1.  In  all  cases  where  they  formally  declare  a  payment  received  ; 

2.  When  they  contain  an  express  mention  that  the  minute  was  made 
to  supply  the  want  of  a  title,  in  favor  of  him  for  whose  advantage  they 
declare  that  an  obligation  was  made. 

Art.  2246. — What  is  written  by  the  creditor  at  the  foot,  in  the 
margin,  or  on  the  back  of  the  title,  that  has  always  remained  in  his  pos- 
session, though  it  be  neither  signed  nor  dated  by  him,  is  good  evidence, 
when  it  tends  to  establish  the  discharge  of  the  debtor. 

In  like  manner,  what  is  written  by  the  creditor  on  the  back,  in  the 
margin,  or  at  the  foot  of  a  duplicate  of  a  title,  or  of  a  receipt,  is  evi- 
dence, provided  that  duplicate  be  in  the  hands  of  the  debtor. 


§  Z.—  Of  Copies  of  Titles. 

Art.  2247. — The  copies  of  the  acts,  which  are  certified  true  copies 
from  the  originals  by  the  notaries  who  are  the  depositaries  of  such 
originals,  make  proof  of  what  is  contained  in  the  originals,  unless  it  be 
proved  that  such  copies  are  incorrect. 

16  L.  332. 


303  OF  CONVENTIONAL  OBLIGATIONS.  303 

Stat.  22c?,  April,  1853.  No.  151. — An  Act  regulating  the  duties  of 
Notaries,  ivithout  the  limits  of  the  City  of  New  Orleans. — ^  1 .  From 
and  after  the  passage  of  this  act,  it  shall  be  the  duty  of  all  notaries  public 
within  this  State,  without  the  limits  of  the  city  of  New  Orleans,  to  deposit 
in  the  office  of  the  parish  recorders  of  the  parish,  in  which  they  may  be 
respectively  commissioned,  within  fifteen  days  at  farthest,  after  the  same 
shall  have  been  passed,  the  original  of  all  acts  passed  before  said 
notaries,  and  in  the  order  of  their  respective  dates,  first  making  a  care- 
ful record  of  said  acts  in  their  record  books  :  Provided,  that  the  fore- 
going shall  not  be  construed  as  embracing  inventories  or  partitions  or 
any  other  act  required  by  law  to  be  performed  by  them  under  any  order 
of  court,  but  the  original  of  all  such  acts,  without  being  recorded,  shall 
be  returned  to  the  court  from  which  the  order  issued. 

§  2.  Said  acts,  when  thus  deposited  in  the  office  of  the  parish  recorder, 
shall  form  a  part  of  the  archives  of  the  same,  and  shall  immediately  be 
recorded  by  him  as  follows  :  If  the  act  contains  a  conveyance  of  real 
estate  or  slaves  without  a  mortgage,  in  a  book  of  conveyances  to  be 
kept  by  the  recorder,  if  such  act  contains  a  conveyance  of  real  estate 
or  slaves,  together  with  a  mortgage,  in  the  aforesaid  book  of  convey- 
ances, and  also  in  a  book  of  conventional  mortgages  to  be  kept  by  such 
recorder,  all  acts  required  by  law  to  be  recorded  except  those  acts 
hereinabove  set  forth,  shall  be  recorded  according  to  the  provisions  of 
the  laws  now  in  force,  and  all  other  acts  in  a  "  book  of  miscellaneous 
acts,"  also  to  be  kept  by  such  recorder,  and  it  shall  be  the  duty  of 
said  recorder  to  grant  copies  of  the  original  acts  deposited  with  him 
as  aforesaid,  under  his  signature  and  seal  of  office,  which  certified  copy 
shall  be  considered  legal  evidence  of  the  contents  of  the  original  acts. 

§  3.  It  shall  be  the  duty  of  the  recorder  to  indorse,  on  the  back 
of  each  act  transmitted  to  him,  the  time  such  act  was  received  by 
the  recorder,  and  to  record  the  same  without  delay  in  the  books  above 
prescribed,  in  the  order  in  which  they  were  received  ;  and  said  acts  shall 
have  cfi"ect  against  third  persons,  only  from  the  date  of  their  being 
deposited  in  the  office  of  the  parish  recorder. 

§  4,  All  notaries  without  the  limits  of  the  city  of  New  Orleans, 
who  may  contravene  the  provisions  of  the  preceding  sections,  shall  be 
liable  to  a  fine  of  one  hundred  dollars  for  each  infraction  of  the  same,  to 
be  recovered  before  any  court  of  competent  jurisdiction,  one-half  for  the 
benefit  of  the  informer,  and  the  other  half  for  the  use  of  the  State. 

^  5.  Within  six  months  from  the  passage  of  this  act,  it  shall  be 
the  duty  of  all  said  notaries  to  have  filed,  in  the  same  manner  as 
above  specified,  the  originals  of  all  acts  now  on  record  in  their  several 
offices,  without  recording  the  same. 

^  6.  All  laws,  or  parts  of  laws,  contrary  to. this  act,  be,  and  the  same 
are  hereby,  repealed. 

Art.  2248. — When  the  original  titles  or  records  are  no  longer  in 


304  OF  CONVENTIONAL  OBLIGATIONS. 

being,  copies  are  good  proof,  and  supply  the  want  of  the  original,  when 
they  are  certified  as  being  conformable  to  the  record,  by  the  notary  who 
has  received  it,  or  by  one  of  his  successors,  or  by  any  other  public  offi- 
cer, with  whom  the  record  was  deposited,  and  who  had  authority  to  give 
certified  copies  of  it,  provided  the  loss  of  the  original  be  previously 
proved. 

.  See  6  IJ.  8.  208 ;  7  N.  8.  550 ;  See  5  N.  S.  175. 

Art.  2249. — When  an  original  title,  by  authentic  act,  or  by  pri- 
fate  signature  duly  acknowledged,  has  been  recorded  in  any  public 
ioffice,  by  an  officer  duly  authorized,  either  by  the  laws  of  this  State,  or 
of  the  United  States,  to  make  such  record,  the  copy  of  such  record,  duly 
authenticated,  shall  be  received  in  evidence,  on  proving  the  loss  of  the 
original,  or  showing  circumstances  supported  by  the  oath  of  the  party, 
to  render  such  loss  probable. 

13  L.  536;  See  5  N.  8.175. 

Art.  2250. — The  record  of  an  act  purporting  to  be  a  sale  or 
exchange  of  real  property,  shall  not  have  effect  against  creditors  or 
uofia  fide  purchasers,  unless,  previous  to  its  being  recorded,  it  was  ac- 
knowledged by  the  party,  or  proved  by  the  oath  of  one  of  the  subscrib- 
ing witnesses,  and  the  certificate  of  such  acknowledgment  be  signed  by 
a  judge  or  notary,  and  recorded  with  the  instrument. 

12  K.  210. 

\  ^.  Of  Recognitive  and  Confirmative  Acts. 

Art.  2251. — Recognitive  acts  do  not  dispense  with  the  exhibition 
of  the  primordial  title,  unless  its  tenor  be  there  specially  set  forth. 

Whatever  they  contain  over  and  above  the  primordial  title,  or  differ- 
ent from  it,  is  of  no  effect. 

Nevertheless,  if  there  be  several  recognitions  conformable,  supported 
by  possession,  one  of  them  being  dated  thirty  years  back,  the  creditor 
may  dispense  with  the  exhibition  of  the  primordial  title. 

8  L.  141. 

Art.  2252. — The  act  of  confirmation  or  ratification  of  an  obligation, 
against  which  the  law  admits  the  action  of  nullity  or  rescission,  is  valid 
only  when  it  contains  tno  substance  of  that  obligation,  the  mention  of 
the  motive  of  the  action  of  rescission,  and  the  intention  of  supplying  the 
defect  on  which  that  action  is  founded. 

13  L.  159 ;  1  E.  457,  459 ;  11  E.  98 ;  6  A.  53,  55. 

In  default  of  an  act  of  confirmation  or  ratification,  it  is  sufficient  that 
the  obligation  be  voluntarily  executed,  subsequently  to  the  period  at 
which  the  obligation  could  have  been  validly  confirmed  or  ratified. 

2  E.  1 ;  4  A.  148. 

The  confirmation,  ratification,  or  voluntary  execution  m  due  form, 
and  at  the  period  fixed  by  law,  involves  a  renunciation  of  the  means  and 
exceptions  that  might  be  opposed  to  the  act,  without  prejudice  however 
to  the  right  of  persons  not  parties  to  it. 

4  E.  127 ;  See  10  M.  72C  ;  6  L.  604 ;  17  L.  455 ;  See  12  E.  221 ;  6  L.  725. 

Art.  2253. — The  donor  cannot,  by  any  confirmative  act,  supply  the 
defects  of  a  donation  ititer  vivos  null  in  form  ;  it  must  be  executed  again 
in  legal  form. 

4  R.  157. 


305  OF  CONVENTIONAL  OBLIGATIONS  305 

Art.  2254. — The  confirmation,  ratification,  or  voluntary  execution 
of  a  donation  by  the  heirs  or  assigns  of  the  donor,  after  his  decease,  in- 
volves their  renunciation  to  oppose  either  defects  of  forms  or  any  other 
exceptions. 

4  E.  157 ;  3  A.  523. 


Section  II. —  Of  Testimonial  Fronf. 

Art.  2255. — Every  transfer  of  immovable  property  or  slaves  must 
be  in  writing ;  but  if  a  verbal  sale,  or  other  disposition  of  such  property, 
be  made,  it  shall  be  good  against  the  vendor,  as  well  as  against  the  ven- 
dee, who  confesses  it  when  interrogated  on  oath,  provided  actual  de- 
livery has  been  made  of  the  immovable  property  or  slaves  thus  sold. 

5  M.  442;  1  N.  S.  4r)6;  2L.  440,  593;  3  L.  118,  4G0;  4L.  4,  22, 1C9;  377;  5  L.  400;  13  L.S&i;  15  L. 
493 ;  18  L.  595 ;  6  K.  428 ;  8  K.  102 ;  10  E.  4C6 ;  1  A.  459  ;  4  A.  103 ;  See  1757,  2584,  2415,  2961 . 

Art.  2256. — Neither  shall  parol  evidence  be  admitted  against  or  be- 
yond what  is  contained  in  the  acts,  nor  on  what  may  have  been  said  be- 
fore, or  at  the  time  of  making  them,  or  since. 

6  M.  423 ;  S  N.  S.  542 ;  2  L.  44G ;  3  L.  460i  4  L.  1, 1G9 ;  5  L.  279 ;  10  L.  205,  209 ;  13  L.  1.33, 13G ;  16  L. 

180 ;  17  L.  369 ;  1  E.  101 ;  3  E.  57,  441 ;  4  E.  508 ;  5  E.  Ill ;  10  E.  4GG ;  11  E.  270 ;  3  A.  153,  193, 

492,  GOO ;  6  A.  589 ;  See  4  L.  29 ;  See  2255. 

Akt.  2257. — All  agreements  relative  to  personal  property,  and  all 
contracts  for  the  payment  of  money,  where  the  value  does  not  exceed 
five  hundred  dollars,  which  ai'e  not  reduced  to  writing,  may  be  proved  by 
any  other  competent  evidence;  such  contracts  or  agreements,  above  five 
hundred  dollars  in  value,  must  be  proved  at  least  by  one  credible  wit- 
ness, and  other  corroborating  circumstances. 

8  N.  S.  457 ;  3  L.  213 ;  5  L.  268  ;  17  L.  344,  459 ;  1  E.  51 ;  2  E.  804 ,  4  E.  157,  468 ;  5  R.  491 ;  1  A.  29 
469;  2  A.  18S,  536;  See  7  L.  104;  14  L.  346. 

Art.  2258. — When  an  instrument  in  writing,  containing  obligations 
which  the  party  wishes  to  enforce,  has  been  lost  or  destroyed,  by  acci- 
dent or  force,  evidence  may  be  given  of  its  contents,  provided  the  party 
show  the  loss,  either  by  direct  testimony,  or  by  such  circumstances,  sup- 
ported by  the  oath  of  the  party,  as  render  the  loss  probable ;  and  in 
this  case,  the  judge  may,  if  required,  order  reasonable  security  to  be 
given  to  indemnify  the  party  against  the  appearance  of  the  instrument, 
in  case  circumstances  render  it  necessary. 

7  L.  20G;  12  L.  166;  13  L.  216;  1  E.  214;  2  E.  112,128;  4  E.  157;  2  A.  754,1012;  8  A.  227. 

Art,  2259. — In  every  case  where  a  lost  instrument  is  made  the  foun- 
dation of  a  suit  or  defence,  it  must  appear  that  the  loss  has  been  adver- 
tised within  a  reasonable  time,  in  a  public  paper,  and  proper  means  taken 
to  recover  the  possession  of  the  instrument. 

8-M.144;  7L.206;  8  L.  516;  13  L.  213;  16  L.  473;  1  E.  214;  4  E.  157:  2  E.  112,  128;  2  A.  751 

829.976;  3  A.  227. 

Art.  2260. — The  competent  witness  of  any  covenant  or  fact,  what- 
ever it  may  be,  in  civil  matters,  is  that  who  is  above  the  age  of  fourteen 
years  complete,  of  a  sound  mind,  free  or  enfranchised,  and  not  one  of 
those  whom  the  law  deems  infamous  ;  he  must  besides  be  not  interested, 
neither  directly  nor  indirectly,  in  the  cause. 

4  L.  200    19  L.  5S4,  090;  4  E.  81 ;  6  A.  292 ;  8L.  270  ;  10 E.  458. 
20 


306  OF  CONVENTIONAL  OBLIGATIONS. 

The  husband  cannot  be  a  witness  either  for  or  against  his  wife,  nor 
the  wife  for  or  against  her  husband  ;  neither  can  ascendants  with  respect 
to  their  descendants,  nor  descendants  with  respect  to  their  ascendants. 

13  L.  IS ;  12  R.  639 ;  2  A:  34.5,  480 ;  3  A.  142, 1T4 ;  See  8  ^l.  363 ;  12  M.  239 :  2  N.  S.  455 ;  5  N.  S.  5 ;  4 
232,  L.  526 ;  U  L.  269 ;  6  A.  192 ;  See  also  7  L.  284. 

Stat.  2Sth  January y  1828,  p.  12. — Whereas,  doubts  have  arisen, 
whether  the  act,  the  provisions  of  which  this  act  is  intended  to  revive, 
has  not  been  abrogated  by  the  two  thousand  two  hundred  and  sixtieth 
article  of  the  new  Civil  Code,  by  which  it  is  enacted,  that  to  be  com- 
petent witness  of  any  covenant  of  fact,  in  civil  matters,  one  must  not  be 
interested  either  directly  or  indirectly  in  the  cause ;  and,  in  order  to 
avoid  any  difficulty  on  that  subject, 

Be  it  enacted,  &c..  That  the  provisions  of  the  above  cited  iTct  be, 
and  are,  hereby  revived,  and  that,  therefore,  the  interest  that  any  wit- 
ness may  have  as  a  member  of  a  corporation,  civil  or  religious,  shall  not 
be  considered  as  a  sufficient  reason  for  excluding  his  testimony  in  a  case 
in  which  the  said  corporation  is  a  party,  unless  the  said  witness  have  in 
the  cause  a  particular  interest,  distinct  from  that  which  he  has  in  com- 
mon with  the  other  members  of  the  said  corporation  ;  provided,  however, 
that  the  interest  which  the  stockholders  of  any  bank,  insurance  compa- 
nies, and  other  moneyed  institutions  of  that  kind,  shall  be  considered  as 
a  sufficient  reason  not  to  admit  the  said  stockholders  as  competent  wit- 
nesses in  any  case  where  the  said  banks  and  other  moneyed  institutions 
may  be  parties. 

Art.  2261. — The  circumstance  of  the  witness  being  a  relation  in  the 
collateral  line,  as  far  as  the  fourth  degree  inclusively,  of  one  of  the 
parties  interested  in  the  cause,  or  engaged  in  the  actual  service  or  salary 
of  one  of  the  said  parties,  or  a  free  colored  person,  is  not  a  sufficient 
cause  to  consider  the  witness  as  incompetent,  but  may,  according  to  cir- 
cumstances, diminish  the  extent  of  his  credibility. 

4L.  200;  4  K.  157;  12  E.  639. 

Art.  2262. — No  attorney  or  counsellor  at  law  shall  give  evidence  of 
any  thing  that  has  been  confided  to  him  by  his  client,  without  the  con- 
sent of  such  client ;  but  his  being  employed  as  a  counsellor  or  attorney, 
does  not  disqualify  him  from  being  a  witness  in  the  cause  in  which  be 
is  employed. 

7  L.  20T ;  1  K.  157 ;  See  7  N.  S.  177. 


Section  III. —  Of  Presumptions. 

Art.  2263. — Presumptions  are  consequences  which  the  law  or  the 
judge  draws  from  a  known  fact  to  a  fact  unknown. 

4  K.  157. 

§  1. —  Of  Presumptions  established  by  Laxu. 

Art.  2264. — Legal  presumption  is  that  which  is  attached,  by  a  spe 
eial  law  to  certain  acts  or  to  certain  facts ;  such  are : 


307  OF  CONVENTIONAL  OBLIGATIONS.  307 

1.  Acts  which  the  law  declares  null,  as  presumed  to  have  been  mad<? 
to  evade  its  provisions,  from  their  very  quality  ; 

2.  Cases  in  which  the  law  declares  that  the  property  or  discharge  re 
suits  from  certain  determinate  circumstances ; 

3.  The  authority  which  the  law  attributes  to  the  thing  adjudged ; 

4.  The  weight  which  the  law  attaches  to  the  confession  of  the  party, 
or  to  his  oath. 

4  E.  157 ;  5  A.  719. 

Art.  2265. — The  authority  of  the  thing  adjudged  takes  place  only 
with  respect  to  what  was  the  object  of  the  judgment.  The  thing  de- 
manded must  be  the  same ;  the  demand  must  be  founded  on  the  same  cause 
of  action;  the  demand  must  be  between  the  same  parties,  and  formed  by 
them  against  each  other  in  the  same  quality. 

14  L.  140  ;  4  R.  157;  3  R.  69, 171 ;  10  R.  361 ;  1  A.  29,  92  ;  3  A.  167,  202. 

Art.  226G. — Legal  presumption  dispenses  with  all  other  proof,  in  fa- 
vor of  him  for  whom  it  exists. 

No  proof  is  admitted  against  the  presumption  of  the  law,  when,  on 
the  strength  of  that  presumption,  it  annuls  certain  acts,  or  refuses  a  ju- 
dicial action,  unless  it  has  reserved  the  contrary  proof,  and  saving  what 
will  be  said  on  the  judicial  confession. 


§  2.   Of  Presumptions  not  estaMlslied  hj  Law. 

Art.  2267. — Presumptions  not  established  by  law  are  left  to  the 
judgment  and  discretion  of  the  judge,  who  ought  to  admit  none  but 
weight}^,  precise  and  consistent  presumptions,  and  only  in  cases  where 
the  law  admits  testimonial  proof,  unless  the  act  be  attacked  on  account 
of  fraud  or  deceit. 

5  L.  4S0 ;  4  E.  157  ;  S  A,  101, 600. 


Section  IV. — Of  the  Confessioii  of  the  Party. 

Art.  2268. — The  confession,  which  is  opposed  to  a  party,  is  either 
extra-judicial  or  judicial. 

4  K.  157. 

Art.  2269. — The  allegation  of  extra-judicial  confession,  merely  ver- 
bal, is  useless  in  all  cases  of  a  demand,  in  support  of  which  testimonial 
proof  would  be  inadmissible. 

5L.  4S0;  4R.157. 

Art.  2270. — The  judicial  confession  is  the  declaration  which  the 
party,  or  his  special  attorney  in  fact,  makes  in  a  judicial  proceeding. 

It  amounts  to  full  proof  against  him  who  has  made  it ; 

It  cannot  be  divided  against  him  ; 

It  cannot  be  revoked,  unless  it  be  proved  to  have  been  made  through 
an  error  in  fact ; 

It  cannot  be  revoked  on  a  pretence  of  an  error  in  law. 

13L.10;  4K.  157;  6  A.  397,  719;  See  5  L.  85. 


308  OF  QUASI-CONTRACTS. 

TITLE  V. 

OF  QUASI-CONTRACTS,  AND  OF  OFFENCES  AND  QUASI-OFFENCEa 

Art.  2271. — Certain  obligations  are  contracted  without  any  agree- 
ment, either  on  the  part  of  the  person  bound,  or  of  him  in  whose  favor 
the  obligation  takes  place. 

Some  are  imposed  by  the  sole  authority  of  the  law,  others  from  an 
act  done  by  the  party  obliged,  or  in  his  favor. 

The  first  are  such  engagements  as  result  from  tutorship,  curatorship, 
neighborhood,  common  property,  the  acquisition  of  an  inheritance,  and 
other  cases  of  a  like  nature. 

The  obligations  which  arise  from  a  fact,  personal  to  him  who  is  bound, 
or  relative  to  him,  either  result  from  quasi-contracts,  or  from  offences 
and  quasi-offences.     They  are  the  subject  of  the  present  title. 

CHAPTEK  I. 

OF    QUASI-CONTRACTS. 

Art.  2272. — Quasi-contracts  are  the  lawful  and  purely  voluntary  act 
of  a  man,  from  which  there  results  any  obligation  whatever  to  a  third 
person,  and  sometimes  a  reciprocal  obligation  between  the  parties. 

Art.  2273. — All  acts,  from  which  there  results  an  obligation  without 
any  agreement,  in  the  manner  expressed  in  the  preceding  article,  form 
quasi-contracts.  But  there  are  two  species  principally  which  give  rise  to 
them,  to  wit :  The  transaction  of  another's  business,  and  the  payment  of 
a  thing  not  due. 

SeelA.S79. 

Art.  2274. — When  a  man  undertakes,  of  his  own  accord,  to  manage 
the  affairs  of  another,  whether  the  owner  be  acquainted  with  the  under- 
taking, or  ignorant  of  it,  the  person  assuming  the  agency,  contracts  the 
tacit  engagement  to  continue  it  and  to  complete  it,  until  the  owner 
shall  be  in  a  condition  to  attend  to  it  himself;  he  a^isumes  also  the  pay- 
ment of  the  expenses  attending  the  business. 

He  incurs  all  the  obligations  which  would  re&ult  from  an  express 
agency  with  which  he  might  have  been  invested  by  the  proprietor. 

Art.  2275. — He  who  has  taken  upon  himself  the  management  of  some 
particular  affair,  is  not  bound  to  manage  others  unconnected  with  that. 

Art.  2276. — The  duties  he  has  undertaken  do  not  cease,  even  if  the 
person,  for  whom  he  acts,  die  previous  to  the  business  being  terminated ; 
they  continue  until  the  heir  can  take  upon  himself  the  direction  of  it. 

Art.  2277. — In  managing  the  business,  he  is  obliged  to  use  all  the 
care  of  a  prudent  administrator. 

Yet,  where  circumstances  of  friendship  or  of  necessity  have  induced 
a  person  to  undertake  the  management,  that  consideration  may  authorize 
the  judge  to  mitigate  the  damages  which  may  arise  from  the  faults  or 
the  negligence  of  the  manager. 


309  OF  QUASI-CONTRACTS.  30^ 

AuT.  2278. — Equity  obliges  the  proprietor,  whose  business  has  been 
well  managed,  to  comply  with  the  engagements  contracted  by  the  mana- 
ger, in  his  name ;  to  indemnify  the  manager  in  all  the  personal  engage- 
ments he  has  contracted ;  and  to  reimburse  him  all  useful  and  necessary 
expenses. 

1  E.  149 ;  2  R.  03. 

Art.  2279. — He  who  receives  what  is  not  due  to  him,  whether  he  re- 
ceives it  through  error,  or  knowingly,  obliges  himself  to  restore  it  to  him 
from  whom  he  has  unduly  received  it. 

7  R.  522  ;  1  A.  379  ;  3  A.  409 ;  Sco  12  R.  2S3. 

Art.  2280. — He  who  has  paid  through  mistake,  believing  himself  a 
debtor,  may  reclaim  what  he  has  paid. 

2  L.  12S ;  5  R.  101 ;  7  R.  522 ;  9  R.  314 ;  11  E.  502 ;  2  A.  723;  3  A.  409 ;  See  12  R.  283. 

Art.  2281. — To  ac(i[uire  this  right,  it  is  necessary  that  the  thing  paid 
be  not  due  iu  any  manner,  either  civilly  or  naturally.  A  natural  obli- 
gation to  pay  will  be  sufficient  to  prevent  the  recovery. 

5E.  101;  TR.  523;   12R.  2S3;    2  A.  723;    3  A.  409  ;   Scel7L.  3S6;    7R.  334;    9  R.  324;  4  A.  550; 

5  A.  15. 

Art.  2282. — A  thing  not  due  is  that  which  is  paid  on  the  supposition 
of  an  obligation  which  did  not  exist,  or  from  which  a  person  has  been  re- 
leased. 

5  R.  101 ;  See  12  R.  2S3. 

Art.  2283. — That  which  has  been  paid  in  virtue  of  a  void  title,  it  is 
also  considered  as  not  due. 

3  A.  409. 

Art.  2284. — The  payment  from  which  we  might  have  been  relieved 
by  an  exception  that  would  extinguish  the  debt,  affords  ground  for  claim- 
ing restitution. 

2  L.  42S ;  See  12  R.  283. 

Art.  2285. — But  this  exception  must  be  such  that  it  shall  extinguish 
even  all  natural  obligation.  Thus  he  who,  having  the  power  to  plead 
prescription,  shall  have  made  payment,  cannot  claim  restitution. 

Art.  2286. — It  is  considered  that  a  thing  has  been  paid,  when  not 
due,  if  the  payment  was  made  by  virtue  of  an  agreement,  the  effect  of 
which  is  suspended  by  a  condition,  the  event  of  which  is  uncertain. 

Art.  2287. — This  principle  must  not  be  extended  to  things  due  on  a 
day  certain,  nor  to  conditions  which  must  certainly  happen. 

Art.  2288. — He  who,  through  mistake,  has  paid  the  debt  of  another 
to  whom  he  believed  himself  indebted,  has  a  claim  to  restitution  from 
the  creditor. 

But  this  right  ceases,  if,  in  conscc|uence  of  the  payment,  the  creditor 
has  destroyed  or  parted  with  his  title ;  the  recourse  still  remains  to  the 
person  paying  against  the  true  debtor. 

1  R.  272. 

Art.  2289. — If  there  be  any  want  of  good  faith  on  the  part  of  him 
who  has  received,  he  is  bound  to  restore,  not  only  the  capital,  but  also 
the  interest  on  the  proceeds  from  the  day  of  the  payment. 

Art.  2290. — If  the  thing  unduly  received  is  an  immovable  property 

or  a  corporeal  movable,  he  who  has  received  it,  is  bound  to  restore  it  in 

kind,  if  it  remain,  or  its  value,  if  it  be  destroyed  or  injured  by  his  fault; 

he  is  even  answerable  for  its  loss  by  fortuitous  event,  if  he  has  received 

it  in  bad  fuith. 

6  L.  277. 


310  OF  QUASI-CONTRACTS. 

Art.  2291. — If  he  who  has  received  bona  fide,  has  sold  the  thing,  he 
is  bound  to  restore  only  the  price  of  the  sale. 

If  he  has  received  in  bad  faith,  he  is  bound,  besides  this  restitution, 
to  indemnify  fully  the  person  who  has  paid. 

4  A.  144. 

Art.  2292. — He  to  whom  property  is  restored,  must  refund  to  the  . 
person  who  possessed  it,  even  in  bad  faith,  all  he  had  necessarily  expended 
for  the  preservation  of  the  property. 

6  N.  S.  616  ;  4  A.  193. 

Art.  2293. — All  persons,  such  even  as  are  incapable  of  consent,  may, 
by  the  quasi-contract,  resulting  from  the  act  of  a  third  person,  become 
either  the  object  or  the  subject  of  an  obligation,  because  the  use  of  rea- 
son, although  necessary  on  the  part  of  the  person  whose  act  forms  the 
quasi-contract,  is  not  requisite  in  those  by  whom,  or  in  whose  favor,  the 
obligations  resulting  from  the  act,  are  contracted. 


CHAPTER  II. 

OF    OFFENCES    AND    QUASI-0FFENCE5. 

Art.  2294. — Every  act  whatever  of  man,  that  causes  damage  to  an- 
other, obliges  him,  by  whose  fault  it  happened,  to  repair  it. 

12  L.  581 ;  16  L.  389  ;  17  L.  5T1  :  5  R.  Tn,  116,  2T7 ;  8  R.  45,  51 ;  12  R.  40,  152 ;  1  A.  889 ;  2  A.  14.8 ; 
4  A.  79, 144 ;  6  A.  496 ;  See  6  L.  737  ;  19  L.  416 ;  6  R.  3S2  ;  8  R.  42S  ;  9  R.  367 ;  12  R.  20  ;  4  A.  440  ; 

See  1928 ;  6  N.  S.  668. 

Art.  2295. — Every  person  is  responsible  for  the  damage  he  occasions 
not  merely  by  his  act,  but  by  his  negligence,  his  imprudence,  or  his  want 
of  skill. 

17  L.  571 ;  1  R.  389 ;  5  R.  70, 116 ;  8  R.  45,  51 ;  12  R.  40 ;  2  A.  14:3 ;  6  A.  95 ;  See  6  L.  7S7. 

Art.  2296. — We  are  responsible,  not  only  for  the  damage  occasioned 
by  our  own  act,  but  for  that  which  is  caused  by  the  act  of  persons  for 
whom  we  are  answerable,  or  of  the  things  which  we  have  in  our  custody. 
This,  however,  is  to  be  understood  with  the  following  modifications. 

Stat.  25th  March,  1 828,  p.  160.—^  23.  From  and  after  the  passage  of 
this  act,  no  client  or  other  person  shall  be  held  to  be  liable  or  respon- 
sible for  any  slanderous  or  libellous  words  uttered  by  his  attorney  at  law, 
but  attorneys  at  law  shall  be  liable  and  responsible  themselves  for  any 
slanderous  or  libellous  words  by  them  uttered,  any  law  to  the  contrary 
notwithstanding. 

9L.  446. 

Art.  2297. — The  father,  or  after  his  decease,  the- mother,  are  re- 
sponsible for  the  damage  occasioned  by  their  minor  or  unemancipated 
children,  residing  with  them,  or  placed  by  them  under  the  care  of  other 
persons,  reserving  to  them  recourse  against  those  persons. 

The  same  responsibility  attaches  to  the  tutors  and  curators  of  minors. 

9  L.  446;  5  R.  70;  See  19  L.  416. 

Art.  2298. — The  curators  of  insane  persons  are  answerable  for  the 
damage  occasioned  by  those  under  their  care. 

5  E.  70. 


311  OF  QUASI-CONTRACTS.  311 

Art.  2299. — Masters  and  employers  are  answerable  for  the  damage 
occasioned  by  their  servants  and  overseers,  in  the  exercise  of  the  func- 
tions in  which  they  are  employed ; 

Teachers  and  artisans,  for  the  damage  caused  by  their  scholars  or 
apprentices,  while  under  their  superinteudance. 

In  the  above  cases,  responsibility  only  attaches,  when  the  masters  or 
employers,  teachers  and  artisans,  might  have  prevented  the  act  which 
caused  the  damage,  and  have  not  done  it. 

8  L.  33,  539  ;  10  L.  583, 5S5 ;  15  L.  1G9 ;  17  L.  541 ;  1  E.  ITS ;  5  E.  113, 138 ;  2  A.  406 ;  Seo  18  L.  491.1 

Art.  2300. — The  masters  of  slaves  are  responsible  for  the  damage 
occasioned  by  them ;  the  master,  however,  has  the  right,  as  established 
under  the  title  of  master  and  servant,  of  abandoning  his  slave  in  dis- 
charge of  that  responsibility. 

5L.348;  18  L.  491 ;  5E.  711;  10  E.  202;  2^^406;  6  A.  476. 

Art.  2301. — The  owner  of  an  animal  is  answerable  for  the  damage 
he  has  caused ;  but  if  the  animal  had  been  lost,  or  had  strayed  more 
than  a  day,  he  may  discharge  himself  from  this  responsibility,  by  aban- 
doning him  to  the  person  who  has  sustained  the  injury ;  except  where 
the  master  has  turned  loose  a  dangerous  or  noxious  animal ;  for  then  he 
must  pay  for  all  the  harm  done,  without  being  allowed  to  make  the  aban- 
donment. 

5E.711. 

Art.  2302. — The  owner  of  a  building  is  answerable  for  the  damage 
occasioned  by  its  ruin,  when  this  is  caused  by  neglect  to  repair,  or  when 
it  is  the  result  of  a  vice  in  its  original  construction. 

5  E.  711. 

Art.  2303. — The  damage  caused  is  not  always  estimated  at  the  exact 
value  of  the  thing  destroyed  or  injured  ;  it  may  be  reduced  according  to 
circumstances,  if  the  owner  of  the  thing  has  exposed  it  imprudently. 

5  E.  711. 

Art.  2304. — He  who  causes  another  person  to  do  an  unlawful  act,  or 
assists  or  encourages  in  the  commission  of  it,  is  answerable,  jointly  with 
that  person,  for  the  damage  caused  by  such  act. 

Stat.  \9th  February,  1844,  p.  14. — That  article  two  thousand  three 
hundred  and  four  of  the  Civil  Code  be  and  it  is  hereby  so  amended  as 
to  make  the  English  of  said  article  correspond  with  the  French,  and  so 
as  to  make  co-trespassers  liable  in  solido. 

16  L.  119;  IE.  75;  7E.  203;  12E.  20;  8  A.  670. 


312  OF  MARRIAGE  CONTRACTS. 


TITLE  YI. 

OF  THE   MARRIAGE   CONTRACT,  AND   OF  THE   RIBPECTIVE   RIGHTS 
OF  THE  PARTIES  IN  RELATION  TO  THEIR  PROPERTY 


CHAPTER  I. 

GENERAL    DISPOSITIONS. 

Art.  2305. — In  relation  to  property,  the  law  only  regulates  the  con- 
jugal association,  in  default  of  particular  agreements,  which  the  parties 
are  at  liberty  to  stipulate  as  they  please,  provided  they  be  not  contrary 
to  good  morals,  and  under  the  modifications  hereafter  prescribed. 

11  L.  27 ;  See  2TTS. 

Art.  2306. — Husband  and  wife  can  in  no  case  enter  into  any  agree- 
ment or  make  any  renunciation,  the  object  of  which  would  be  to  alter  the 
legal  order  of  descents,  either  with  respect  to  themselves  in  what  con- 
cerns the  inheritance  of  their  children  or  posterity,  or  with  respect  to  their 
children  between  themselves,  without  any  prejudice  to  the  donations  in- 
ter vivos  or  mortis  causa,  which  may  take  place  according  to  the  formali- 
ties and  in  the  cases  determined  by  this  code. 

11  L.  27. 

Apt.  2307. — Neither  can  husband  and  wife  derogate  by  their  matri- 
monial agreement  from  the  rights  resulting  from  the  power  of  the  hus- 
band over  the  person  of  his  wife  and  children,  or  which  belong  to  the 
husband  as  the  head  of  the  family,  nor  from  the  rights  granted  to  the 
surviving  husband  or  wife  by  the  title  of  father  a7id  child,  and  by  the 
title  of  minors,  of  their  tutorship,  ^c,  nor  from  the  prohibitory  dispo- 
sitions of  this  code. 

11  L.  27. 

Art.  2308. — Every  matrimonial  agreement  must  be  made  by  an  act 
before  a  notary  and  two  witnesses. 

The  practice  of  marriage  agreement  under  private  signature  is  abro- 
gated. 

16  L.  273;  5  A.  821 ;  Seo  15  L.  565. 

Art.  2309. — Every  matrimonial  agreement  can  be  altered  by  the  hus- 
band and  wife  jointly,  before  the  celebration  of  marriage ;  but  it  cannot 
be  altered  after  the  celebration. 

2  L.  2CS. 

Art.  2310. — The  minor,  who  is  capable  of  contracting  matrimony, 
may  give  his  consent  to  any  agreement  which  their  contract  is  suscep- 
tible of,  and  the  agreement  entered  into  and  the  donations  he  has  made 
by  the  same,  are  valid,  provided  that,  if  he  be  not  emancipated,  he  has 
been  assisted  in  the  agreement  by  those  persons  whose  consent  is  neces- 
sary to  his  marriage. 

Art.  2311. — The  most  ordinary  conventions  in  marriage  contracts, 
are  the  settlement  of  the  dowry  and  the  various  donations  which  the 
husband  and  wife  may  make  to  each  other,  either  reciprocally  or  the  one 


313  OF  MARRIAGE  CONTRACTS.  313 

to  the  olher,  or  which  they  may  receive  from  others,  in  consideration  of 
the  marriage. 

Art.  2312. — The  partnership,  or  community  of  acquets  or  gains, 
needs  not  to  be  stipulated ;  it  exists  by  operation  of  law,  in  all  cases 
where  there  is  no  stipulation  to  the  contrary. 

But  the  parties  may  modify  or  limit  it ;  tliey  may  even  agree  that  it 
shall  not  exist. 

2  L.  269. 

Art.  2313. — From  the  various  conventions  which  arc  customary  in 
marriage  contracts,  or  which  are  a  consequence  of  tlie  marriage,  result 
various  distinctions  with  respect  to  the  estate  which  may  be  the  object 
of  these  conventions. 

Art."  23 14. — The  property  of  married  persons  is  divided  into  sepa- 
rate property  and  common  property. 

Separate  property  is  that  which  either  party  brings  in  marriage,  or 
acquires  during  the  marriage,  by  inheritance  or  by  donation  made  to  him 
or  her  particularly. 

Common  property  is  that  which  is  acquired  by  the  husband  and  wife, 
during  marriage,  in  any  manner  diflfcrcnt  from  that  above  declared. 

10  L.  172. 

Art.  231.3. — The  separate  property  of  the  wife  is  divided  into  dotal 
and  extradotal. 

Dotal  property  is  tliat  which  the  wife  brings  to  the  husband  to  assist 
him  in  bearing  the  expenses  of  tlie  marriage  establishment. 

Estra-dotal  property,  otherwise  called  paraphernal  property,  is  that 
which  forms  no  part  of  the  dowry. 

IT  L.  299 ;  See  1  L.  201. 


CHAPTER  11. 

OF    THE    VARIOUS    KINDS    OF    MATRIMONIAL    AGREEMENTS. 

Section  I. — Of  Donations  made  in  consideration  of  Marriage. 

Art.  2316. — Husband  and  wife  mayj^  by  their  marriage  contract, 
make  reciprocally  or  one  to  tlie  other,  or  receive  from  other  persons,  in 
consideration  of  their  marriage,  every  kind  of  donations,  according  to 
the  rules  and  under  tlie  modifications  prescribed  in  the  title  of  donations 
inter  vivos  and  mortis  causa. 

'  See  15  L.  565. 

Section  II. —  Of  Doxvrij  or  Marriage  Portion. 

Art.  2317. — By  dowry  is  meant  the  effects  which  the  wife  brings  to 
the  husband  to  support  the  expenses  of  marriage. 

10  R.  74;  Sec  2  L.  538;  4L.554,  55S;  18L.  23;  16  L.  271. 

Art.  2318. — Whatever,  in  the  marriage  contract,  is  declared  to  be- 
long to  the  wife,  or  to  be  given  to  her  on  account  of  the  marriage,  by 
other  persons  than  the  husband,  is  part  of  the  dowry,  unless  tliere  be  a 
stipulation  to  the  contrary. 

10  R.  T4 ;  6  A.  142 


314  OF  MARRIAGE  CONTRACTS. 

Art.  2319. — The  settlement  of  the  dowry  may  include  all  the  pres 
ent  and  future  effects  of  the  wife,  or  her  present  effects  only,  or  a  part 
of  her  present  and  future  effects,  or  even  an  individual  object. 

The  constitution,  in  general  terms,  of  all  the  effects  of  the  wife,  does 
not  include  her  future  effects. 

Art.  2320. — Dowry  cannot  be  settled,  nor  can  it  even  be  increased 
during  the  marriage. 

Art.  2321. — Dowry  can  be  settled  either  by  the  wife  herself,  or  by 
her  father  or  mother  or  other  ascendants,  or  by  other  relations,  and  even 
by  strangers. 

-^  *  10  K.  74. 

Art.  2322. — If  the  father  or  mother  settle  jointly  a  dowry,  without 
distinguishing  the  part  of  each,  it  shall  be  supposed  to  be  constituted  by 
equal  portions. 

If  the  dowry  be  settled  by  the  father  alone,  for  paternal  and  mater- 
nal rights,  the  mother,  although  present  to  the  contract,  shall  not  be 
obliged,  and  the  father  alone  shall  remain  answerable  for  the  whole  of 
the  dowry. 

Art.  2323.— If  the  survivor,  either  father  or  mother,  settles  a  dow- 
ry for  paternal  and  maternal  effects,  without  specifying  the  portions,  the 
dowry  shall  be  first  taken  out  of  the  rights  of  the  future  husband  or  wife, 
out  of  the  estate  of  the  deceased  husband  or  wife,  and  the  rest  out  of  the 
estate  of  the  person  who  settled  the  dowry. 

Art.  2324. — Although  the  daughter,  who  has  received  a  dowry  from 
her  father  and  mother,  may  have  effects  belonging  to  her,  which  they 
enjoy,  the  dowry  shall  be  taken  out  of  the  estate  of  the  person  settling 
the  dowry,  unless  there  be  a  stipulation  to  the  contrary. 

Art.  2325. — Those  who  settle  a  dowry,  are  bound  to  the  warranty  of 
the  things  thus  settled. 

Art.  2326. — The  interests  of  the  dowry  begin,  of  right,  from  the  day 
of  the  marriage,  against  those  who  have  promised  the  same,  although 
there  may  be  time  given  for  the  payment,  unless  there  be  a  contrary 
stipulation. 

^  6  L.  763. 

Art.  2327. — The  dowry  ds  given  to  the  husband  for  him  to  enjoy  the 
same  as  long  as  the  marriage  shall  last. 

ifll.  513;  lOE.  74. 

Art.  2328. — The  action,  which  the  husband  has  to  recover  the  dowry 
from  those  who  have  settled  the  same,  is  prescribed  against  by  the  same 
space  of  time  as  all  other  personal  actions. 

Art.  2329. — The  income  or  proceeds  of  the  dowry  belong  to  the 
husband,  and  are  intended  to  help  him  to  support  the  charges  of  the 
matrimony,  such  as  the  maintenance  of  the  husband  and  wife,  that  of 
their  children,  and  other  expenses  which  the  husband  deems  proper. 

2  E,  513 ;  3  K.  829. 

Art.  2330. — The  husband  alone  has  the  administration  of  the  dowry, 
and  his  wife  cannot  deprive  him  of  it ;  he  may  act  alone  in  a  court  of 
justice,  for  the  preservation  or  recovery  of  the  dowry,  against  such  aa 
either  owe  or  detain  the  same,  but  this  does  not  prevent  the  wife  from 
remaining  the  proprietor  of  the  effects  which  she  brought  as  her  dowry. 

18  L.  431;  2K.  513;  3  K.  829. 


315  OF  MARRIAGE  CONTRACTS.  315 

Art.  2331. — In  case,  however,  of  the  husband's  absence  or  neglect 
to  sue  for  the  dotal  effects  of  the  wife,  she  may  sue  for  them  herself,  ha- 
viug  first  been  authorized  by  the  proper  judge. 

Art.  2332. — It  may  likewise  be  stipulated  by  the  marriage  contract 
that  the  wife  shall  receive  annually,  upon  her  own  acquittances,  a  part 
of  her  revenue,  for  her  maintenance  and  personal  wants. 

Art.  2333. — The  husband  is  not  bound  to  give  security  upon  his  re- 
ceiving the  dowry,  unless  he  has  been  bound  to  do  so  by  the  marriage 
contract. 

Art.  2334. — If  the  dowry,  or  part  of  it,  should  consist  in  movable 
effects,  valued  by  the  marriage  contract  without  declaring  that  the  esti- 
mated value  of  the  same  does  not  constitute  a  sale,  the  husband  becomes 
the  proprietor  of  such  movable  effects,  and  owes  nothing  but  the  estima- 
ted value  of  the  same. 

2  E.  513. 

Art.  2335. — The  estimated  value  of  slaves,  settled  as  dowry,  does 
not  transfer  the  property  of  the  same  to  the  husband,  unless  there  be  an 
express  declaration  to  that  effect. 

The  property  of  dotal  immovables,  whether  valued  or  not,  can  never 
be  transferred  to  the  husband,  even  by  express  agreement. 

12  L.  2S3 ;  See  2346. 

Art.  2336. — x\n  immovable,  bought  with  the  dotal  funds,  is  dotal. 
It  is  the  same  with  respect  to  the  immovable  given  in  payment  of  a 
dowry  settled  in  money. 

8  N.  S.  192 ;  IT  L.  800. 

Art.  2337. — Immovables,  settled  as  a  dowry,  can  be  sold  or  mort- 
gaged, during  the  marriage,  neither  by  the  husband  nor  the  wife,  nor  by 
both  together,  except  as  is  hereinafter  expressed. 

S  L.  180 ;  3  11.  829 ;  4  R.  453 ;  8  E.  45T ;  2  A.  771,  834. 

Art.  2338. — The  wife  may,  with  the  authorization  of  her  husband, 
or,  on  his  refusal,  with  the  authorization  of  the  judge,  give  her  dotal 
effects  for  the  establishment  of  the  children  she  may  have  by  a  former 
marriage ;  but  if  she  be  authorized  only  by  the  judge,  she  is  bound  to 
reserve  the  enjoyment  to  her  husband. 

Art.  2339. — She  may  likewise,  with  the  authorization  of  her  hus- 
band, give  her  dotal  effects  for  the  establishment  of  their  common  chil- 
dren. 

Art.  2340. — Immovables,  settled  as  dowry,  may  be  alienated  with 
the  wife's  consent,  when  the  alienation  of  the  same  has  been  allowed  by 
the  marriage  contract ;  but  their  value  must  be  reinvested  in  other  im- 
movables. 

Art.  2341. — Such  immovable  may  be  likewise  sold,  with  the  autho- 
rization of  the  judge,  at  public  auction,  after  three  advertisements  or 
publications  in  the  usual  places  or  in  the  newspapers,  for  the  purpose  of 
liberating  from  jail  either  husband  or  wife  ;  of  supplying  the  family  with 
food,  in  the  cases  provided  for  under  the  title  o1  faflicr  and  child ;  of 
paying  the  debts  of  the  wife  or  of  those  who  settled  the  dowry,  when 
sucli  debts  are  of  a  certain  date  prior  to  the  marriage  contract ;  or  for 
the  purpose  of  making  heavy  repairs  indispensably  necessary  for  the  pre- 
Bervation  of  the  iinuiovables  settled  as  a  dowry;  and  in  fine,  when  the 


316  OF  MARRIAGE  CONTRACTS. 

immoYablc  is  held  undivided  with  a  third  person,  and  the  same  is  ascer- 
tained not  to  be  susceptible  of  being  divided. 

In  all  such  cases,  what  remains  unemployed,  out  of  the  proceeds  of 
the  sale,  above  the  necessities  which  have  been  the  occasion  of  the  sale, 
shall  remain  dotal  effects,  and  shall  be  laid  out  as  such  to  the  benefit  of 
the  wife. 

1  N.  S.  463;  12  L.  1T2  ;  IT  L.  290;  19  L.  574;  See  1263, 1265, 1304. 

Art.  2342. — If  except  as  above  expressed,  the  wife  or  husband,  or 
both  jointly  alienate  the  dotal  estate,  the  wife  or  her  heirs  may  cause 
the  alienation  to  be  set  aside  after  the  dissolution  of  the  marriage ;  and 
no  prescription  shall  run,  during  the  marriage,  in  bar  of  this  right.  The 
wife  shall  have  the  same  right,  after  the  separation  of  property. 

8E.  467:  2  A.  771. 

Art.  2343. — Immovables,  which  are  a  part  of  the  dowry,  and  which 
are  not  declared  by  the  marriage  contract  liable  to  be  alienated,  are  im- 
prescriptible during  the  marriage ;  they  become  prescriptible  after  the 
separation  of  goods. 

Art.  2344. — With  respect  to  all  the  effects  of  the  dowry,  the  hus- 
band is  subject  to  all  the  obligations  of  the  usufructuary. 

3E.  329. 

Art.  2345. — If  the  dowry  is  in  danger  of  being  lost,  the  wife  may 
sue  for  a  separation  of  goods  and  chattels,  as  will  be  explained  hereaf- 
ter. 

Art.  2346. — If  the  dowry  consists  of  immovables  or  slaves,  or  if 
it  consists  of  movables  not  valued  by  the  marriage  contract,  or  valued 
with  a  declaration  that  the  valuation  is  not  intended  to  divest  the  wife 
of  her  property  in  the  same,  the  husband  or  his  heirs  may  be  compelled 
to  restore  the  same  without  delay,  after  the  dissolution  of  the  marriage. 

See  2335. 

Art.  2347. — Should  the  dowry  consist  of  a  sum  of  money,  or  mov- 
ables valued  by  the  marriage  contract  without  a  declaration  that  the  es- 
timated value  is  not  intended  to  convey  the  property  of  the  same  to  the 
husband,  the  restitution  of  the  same  cannot  be  enforced,  until  one  year 
after  the  dissolution. 

Art.  2348. — If  any  of  the  immovables  and  slaves,  the  property  of 
which  is  vested,  in  the  wife,  have  perished  or  grown  worse  by  use,  and 
without  any  neglect  on  the  part  of  the  husband,  he  shall  be  bound  to 
restore  only  such  as  may  remain,  and  in  the  situation  in  which  they  are  ; 
nevertheless,  the  wife  may  in  all  cases  take  back  her  linen,  clothing,  and 
jewels,  in  her  actual  use,  under  the  obligation  of  accounting  for  their 
value  when  such  linen,  clothes,  and  jewels  have  been  in  the  first  in- 
stance, settled  with  estimation. 

Art.  2349. — If  the  dowry  includes  bonds  and  credits  which  could 
not  be  recovered,  whether  owing  to  the  insolvency  of  the  debtors  or 
otherwise,  but  not  owing  to  the  fault  or  neglect  of  the  husband,  he  shall 
not  be  answerable  for  the  consequences,  and  shall  be  bound  only  to  restore 
the  deeds  or  vouchers,  upon  which  the  debt  is  grounded. 

Art.  2350. — If  a  dowry  consists  of  usufruct,  the  husband  or  his 
heirs,  at  the  time  of  the  dissolution  of  the  marriage,  are  bound  only  to 
return  the  right  of  the  usufruct,  and  not  the  profits  which  accrued  du- 
ring the  marriage. 


317  OF  MARRIAGE  CONTRACTS.  317 

Art.  2351. — If  the  dowry  consists,  in  whole  or  in  part,  of  herds  or 
flocks,  not  valued  in  the  marriage  contract,  or  valued  with  a  declaration 
that  the  estimated  value  does  not  deprive  the  wife  of  her  property  in  the 
same,  the  husband  shall  be  bound  only  to  deliver  such  proportion  of  the 
increase  or  young,  proceeding  from  such  flocks  and  herds  during  the 
marriage,  as  shall  be  necessary  to  complete  the  whole  number  of  head 
of  cattle  that  he  originally  received. 

But  with  respect  to  slaves  constituted  as  a  dowry,  and  not  estimated 
in  such  a  manner  as  to  operate  their  sale,  the  husband  is  not  bound  to 
give  others  in  the  room  of  those  who  may  be  missing  or  dead,  to  supply 
the  deficiencies  which  may  have  happened  among  them  during  the  mar- 
riage without  any  fault  of  his ;  he  is  bound  only  to  deliver  such  as  shall 
remain  in  the  state  in  which  they  may  be,  but  he  must  include  in  this 
delivery  the  living  children  which  may  have  been  born  from  such  slaves. 

6  A.  034. 

Art.  2352. — If  the  marriage  has  lasted  ten  years,  since  the  time  at 
which  the  payment  of  the  dowry  became  due,  the  wife  or  her  heirs  may 
claim  the  same  from  the  husband  after  the  dissolution  of  the  marriage, 
without  being  bound  to  prove  that  the  husband  has  received  it,  unless 
the  husband  shall  satisfactorily  prove  that  he  has  uselessly  done  every 
thing  in  his  power  to  obtain  the  payment  of  the  same. 

This  responsibility  of  the  husband  does  not  hold,  when  the  wife  her- 
self has  promised  the  dowry,  for  in  such  case  neither  she  nor  her  heirs 
could  claim  what  she  has  not  paid. 

Airr.  2353. — If  the  marriage  be  dissolved  by  the  death  of  Vxo  wife, 
the  interests  and  profits  of  the  dowry  to  be  returned,  run  of  righo  to  the 
benefit  of  her  heirs,  from  the  day  of  the  dissolution. 

If  it  be  by  the  death  of  her  husband,  the  wife  has  her  choice  either 
to  claim  the  interests  of  her  dowry  during  the  year  of  mourning,  or  to 
claim  a  sustenance  to  be  taken  out  of  the  succession  of  her  husband. 
But  in  both  cases,  she  has  a  right  during  that  year,  to  be  supplied  with 
habitation  and  mourning  dresses  out  of  the  succession,  wliich  charges 
shall  not  be  deducted  out  of  the  interests  due  to  her. 

S  L.  154,  466 ;  12  L.  129  ;  3  A.  436. 

Art.  2354. — If  the  lease,  which  the  husband  has  g;-aiited  of  the 
dotal  immovable,  has  more  than  a  year  to  run,  at  the  dissolution  of  the 
marriage,  it  shall  be  released  at  the  end  of  a  year  from  the  dissolution, 
if  the  lessee  does  not  prefer  to  quit  sooner  the  property  rented. 

Art.  2355. — The  wife  has  a  Icii'al  morta-a^e  on  the  immovables,  and 
a  privilege  on  the  movables  of  her  husband,  to  wit : 

1.  For  the  restitution  of  her  dowry,  as  well  as  for  the  replacing  of 
her  dotal  efi"ects  which  she  brought  at  the  time  of  her  marriage,  and 
which  were  alienated  by  her  husband,  and  this  from  the  time  of  the  cel- 
ebration of  the  marriage  ; 

4PV.453;  lOR.  T4;  2  A.  789. 

2.  For  the  restitution  or  the  replacing  of  the  dotal  eff"ects,  which 
she  acquired  during  the  marriage,  either  by  succession  or  by  donation, 
from  the  day  when  such  succession  devolved  to  her,  or  such  donation 
began  to  have  its  eff'ect. 

11  L.  28 ;  See  2  L.  533  ;  4  L.  554,  553 ;  18  L.  23 ;  16  L.  2T1 ;  See  3207,  3158,  8182,  8221,  8287,  8293. 


318  OF  MARRIAGE  CONTRACTS. 

Art.  2356. — The  privilege  granted  by  tlie  preceding  article,  cannot 
in  any  ease  extend  to  immovables,  and  can  never  affect  the  rights  of 
creditors,  whose  mortgage  is  prior  to  that  of  the  wife. 

2  A.  TS9. 

AnT.  2357. — The  husband  may,  at  any  time,  release  the  mass  of  his 
property  from  this  legal  mortgage,  by  giving  a  special  mortgage,  to  the 
satisfaction  of  a  family  meeting  consisting  of  the  relations  or  friends  of 
his  wife,  as  provided  for  in  the  title  of  moiigagcs. 

Art.  2358. — If  the  husband  was  already  insolvent  and  had  neither 
art  nor  trade,  when  the  father  settled  a  dowry  on  his  daughter,  she  shall 
be  bound  to  return  to  the  succession  of  her  father  only  the  action  she 
has  against  the  succession  of  her  husband,  to  be  reimbursed  for  the 
same. 

Bu.t  if  the  husband  has  become  insolvent  only  since  the  marriage, 
or  if  he  exercise  a  trade  or  profession,  which  was  to  him  instead  of  an 
estate,  the  loss  of  the  dowry  falls  solely  vipon  the  wife. 

Art.  2359. — When  the  wife  has  not  brought  any  dowry,  or  when 
what  she  has  brought  as  a  dowry  is  inconsiderable  with  respect  to  the 
condition  of  the  husband,  if  either  the  husband  or  the  wife  die  rich, 
leaving  the  survivor  in  necessitous  circumstances,  the  latter  has  a  right 
to  take  out  of  the  succession  of  the  deceased  what  is  called  the  marital 
portion,  that  is,  the  fourth  of  the  succession  in  full  property,  if  there 
be  no  children,  and  the  same  portion,  in  usufruct  only,  when  there  are 
but  three  or  a  smaller  number  of  children ;  and  if  there  be  more  than 
three  children,  the  survivor,  whether  hvisband  or  wife,  shall  receive 
only  a  child's  share  in  usufruct,  and  he  is  bound  to  include  in  this  por- 
tion what  has  been  left  to  him  as  a  legacy  by  the  husband  or  wife,  who 
died  first. 

6  L.  105 ;  17  L.  8T4 ;  9  R.  101 ;  3  A.  104,  713 ;  5  A.  158. 

Section  III. — Of  Paraphernalia  or  Extra- Dotal  Effects. 

Art.  2360. — All  property,  which  is  not  declared  to  be  brought  in 
marriage  by  the  wife,  or  to  be  given  to  her  in  consideration  of  the  mar- 
riage, or  to  belong  to  her  at  the  time  of  the  marriage,  is  paraphernal. 

See  1  A.  301. 

Art.  2361. — The  wife  has  the  right  to  administer  personally  her 
paraphernal  property,  without  the  assistance  of  her  husband. 

16  L.  5 ;  17  L.  299 ;  2  A.  1,  890;  See  1  L.  201 ;  18  L.  431 ;  6  R.  41. 

Art.  2362. — The  paraphernal  property,  which  is  not  administered 
by  the  wife  separately  and  alone,  is  considered  to  be  under  the  manage- 
ment of  the  husband. 

18  L.  434;  12  E.  524. 

Art.  2363. — When  the  paraphernal  property  is  administered  by  the 
husband,  or  by  him  and  the  wife  indifferently,  the  fruits  of  this  property, 
whether  natural,  civil,  or  the  result  of  labor,  belong  to  the  conjugal 
partnership,  if  there  exists  a  community  of  gains.  If  there  do  not, 
each  party  enjoys,  as  he  chooses,  that  which  comes  to  his  hands ;  but 
the  fruits  and  revenues,  which  are  existing  at  the  dissolution  of  the 
marriage,  belong  to  the  owner  of  the  things  which  produce  them. 

16L.1;  19  L.  574;  10  E.  46;  6  A.  634. 


319  OF  MARRIAGE  CONTRACTS.  319 

Art.  2364. — The  wife  who  has  left  to  her  husband  the  administra 
tion  of  her  paraphernal  property,  may  afterwards  withdraw  it  from  him. 

8  N.  8.  229 ;  16  L.  5  ;  See  236S. 

Art.  2365. — The  husband  who  administers  the  paraphernal  property 
of  his  wife,  notwithstanding  her  formal  opposition,  is  accountable  to  her 
for  all  the  fruits,  as  well  those  existing  as  those  which  have  been  con- 
sumed. 

Art.  2366. — If  all  the  property  of  the  wife  be  paraphernal,  and 
she  have  reserved  to  herself  the  administration  of  it,  she  ought  to  bear 
a  proportion  of  the  marriage  charges,  equal,  if  need  be,  to  one-half  of 
her  income. 

16  L.  1 ;  19  L.  55S,  579. 

Art.  2367. — The  wife  may  alienate  her  paraphernal  property  with 
the  authorization  of  her  husband,  or  in  case  of  refusal  or  absence  of  the 
,  husband,  with  the  authorization  of  the  judge ;  but  should  it  be  proved 
that  the  husband  has  received  the  amount  of  the  paraphernal  property 
thus  alienated  by  his  wife,  or  otherwise  disposed  of  the  same  for  his  in- 
dividual interest,  the  wife  shall  have  a  legal  mortgage  on  all  the  property 
of  her  husband  for  the  reimbursing  of  the  same. 

6  L.  22 ;  11  L.  559  ;  12  L.  72 ;  IT  L.  296 ;  19  L.  406  ;  4  R.  114,  ITl ;  6  R.  .'56, 1.54;  10  R.  74, 154  ;  2  A 
774,  7S9 ;  4  A.  411,  465,  569 ;  5  A.  37,  5S5,  6SS ;  See  2367,  81S2. 

Art.  2368. — The  wife  has,  even  during  marriage,  a  right  of  action 
against  her  husband  fdt*  the  restitution  of  her  paraphernal  effects  and 
their  fruits,  as  above  expressed. 

S  N.  S.  229 ;  7  L.  296 ;  10  L.  136  139;  16  L.  1 ;  17  L.  300  ;  19  L.  553 ;  2  A.  440. 


Section  IV. —  Of  ike  Community  or  Partnership  of  Acquets  or 

Gains. 

^\.   Of  Legal  Partncrshij). 

Art.  2369. — Every  marriage  contracted  in  this  State,  superinduces 
of  right,  partnership  or  community  of  acquets  or  gains,  if  there  be  no 
stipulation  to  the  contrary. 

Stat.  I8th  March,  1852,  p.  200.— All  property  hereafter  ac- 
quired in  this  State  by  non-resident  married  persons,  whether  the  title 
thereto  be  in  the  name  of  either  the  husband  or  wife,  or  in  their  joint 
names,  shall  be  subject  to  the  same  provisions  of  law  which  now  regu- 
lates the  community  of  acquets  and  gains  between  citizens  of  this  State. 

2  L.  269 ;  6  A.  57,  257,  327. 

Art.  2370. — A  marriage  contracted  out  of  this  State,  between  per- 
sons who  afterwards  come  here  to  live,  is  also  subjected  to  the  commu- 
nity of  acquets,  with  respect  to  such  property  as  is  acquired  after  their 
arrival. 

6  N.  S.  571 ;  7  N.  S.  41 ;  4  L.  ISS  ;  9  L.  457  ;  6  A.  256,  827,  436. 

Art.  2371. — This  partnership  or  community  consists  of  the  profits 
of  all  the  effects  of  which  the  husband  has  the  administration  and  en- 
joyment, either  of  right  or  of  fact,  of  the  produce  of  the  reciprocal  in- 
dustry and  labor  of  both  husband  and  wife,  and  of  the  estates  which 
they  may  acquire  during  the  marriage,  either  by  donations  made  jointly 


320  OF  MARRIAGE  CONTRACTS. 

to  them  botli,  or  by  purchase,  or  in  any  other  similar  way,  even  although 
the  purchase  be  only  in  the  name  of  one  of  the  two  and  not  of  both, 
because  in  that  case  the  period  of  time  when  the  purchase  is  made  is 
alone  attended  to,  and  not  the  person  who  made  the  purchase. 

IL.  201,  5-32 -,10  L.  146.  172,  181;  16L.  1.  5;  17  L.  238,  294;  19  L.  406;  1  K  4:^1;  3R.  823;  10  R. 
46;  11  E.  445,526;  12  E.  578;  2  A.  80,  762,  930;  5  A.  611  ;  6  A.  56,  684;  Sec  4  N.  S.  212;  3  L.  281; 

10  L.  148 ;  12  L.  172. 

Art.  2372. — In  the  same  manner,  the  debts  contracted  during  the 
marriage  enter  into  the  partnership  or  community  of  gains,  and  must 
be  acquitted  out  of  the  common  fund,  whilst  the  debts  of  both  husband 
and  wife,  anterior  to  the  marriage,  must  be  acquitted  out  of  their  own 
personal  and  individual  effects. 

Art.  2373. — The  husband  is  the  head  and  master  of  the  community 
of  gains  ;  he  administers  its  effects,  disposes  of  the  revenues  which  they 
produce,  and  may  alienate  them  by  an  encumbered  titk,  without  the 
consent  and  permission  of  his  wife. 

He  can  make  no  conveyance  hite^'  vivos  by  a  gratuitous  title,  of 
the  immovables  of  the  community,  nor  of  the  whole,  or  of  a  quota  of 
the  movables,  unless  it  be  for  the  establishment  of  the  children  of  the 
marriage. 

Nevertheless  he  may  dispose  of  the  movable  effects  by  a  gratuitous 
and  particular  title,  to  the  benefit  of  all  persons. 

But  if  it  should  be  proved  that  the  husband  has  sold  the  common 
estate,  or  otherwise  disposed  of  the  same  by  fraud,  to  injure  his  wife, 
she  may  have  her  action  against  the  heirs  of  her  late  husband,-  in  sup- 
port of  her  claim  in  one-half  of  the  estate,  on  her  satisfactorily  proving 
the  fraud. 

6  L.  463 ;  9  L.  457 ;  12  E.  334 ;  2  A.  226,  G34 ;  3  A.  611. 

Art.  2374. — At  the  time  of  the  dissolution  of  the  marriage,  all 
effects  which  both  husband  and  wife  reciprocally  possess,  are  presumed 
common  effects  or  gains,  unless  they  satisfactorily  prove  which  of  such 
effects  they  brought  in  marriage,  or  have  been  given  them  separately,  or 
they  have  respectively  inherited. 

See  Amendment  to  Art.  698 ;  7  M.  362;  U  E.  314,  526 ;  3  A.  34;  Sco  2371. 

Art.  2375. — The  effects  which  compose  the  partnership  or  commu- 
nity of  gains,  are  divided  into  two  equal  portions  between  the  husband 
and  the  wife,  or  between  their  heirs,  at  the  dissolution  of  the  marriage  ; 
and  it  is  the  same  with  the  respect  to  the  profits  arising  from  the  effects 
which  both  husband  and  wife  brought  reciprocally  in  marriage,  and  which 
have  been  administered  by  the  husband,  or  by  husband  and  wife  con- 
jointly, although  what  has  been  thus  brought  in  marriage,  by  either  the 
husband  or  the  wife,  be  more  considerable  than  what  has  been  brought 
by  the  other,  or  even  although  one  of  the  two  did  not  bring  any  thing  at 
ail. 

9  L.  580 ;  12  E.  578  ;  6  A.  634. 

Art.  2376. — The  fruits  hanging  by  the  roots  on  the  hereditary  or 
proper  lands  of  either  the  husband  or  the  wife,  at  the  time  of  the  disso- 
lution of  the  marriage,  are  equally  divided  between  husband  and  wife^ 
or  their  heirs. 

It  is  the  same  with  respect  to  the  young  of  cattle  yet  in.  gestation  • 
but  the  fruits  of  the  paraphernal  effects  of  which  the  wife  reserved  to 
herself  the  enjoyment,  are  excepted  from  the  rule  contained  in  thJ«  article. 

7L.  216;  6  A.  634. 


321  OF  MARRIAGE  CONTRACTS.  321 

Art.  2377. — When  the  hereditary  property  of  either  the  husband 
or  the  wife  has  been  increased  or  improved  during  the  marriage,  the 
other  spouse,  or  his  or  her  heirs,  shall  bo  entitled  to  the  reward  of  one- 
half  of  the  value  of  the  increase  or  ameliorations,  if  it  be  proved  that 
the  increase  or  ameliorations  be  the  result  of  the  common  labor,  expen- 
ses, or  industry ;  but  there  shall  be  no  reward  due,  if  it  be  proved  that 
the  increase  is  due  only  to  the  ordinary  course  of  things,  to  the  rise  in 
the  value  of  property,  or  to  the  chances  of  trade. 

17  L.  302 ;  12  K.  3T3,  3S5 ;  3  A.  611 ;  6  A  634 ;  See  4  R.  273 ;  6  E.  503 ;  10  R.  873 ;  8  R.  131 ;  2  A.  30. 

Art.  2378. — It  i^  understood  that,  in  the  partition  of  the  effects  of 
the  partnership  or  community  of  gains,  both  husband  and  wife  are  to  be 
equally  liable  for  their  share  of  the  debts  contracted  during  the  mar- 
riage, and  not  acquitted  at  the  time  of  its  dissolution. 

11  R.  206 ;  12  R.  113,  579 ;  1  A.  280 ;  2  A.  260 ;  3  A.  269  ;  See  7  L.  150. 

Art.  2379. — Both  the  wife  and  her  heirs  or  assigns  have  the  privi- 
lege of  being  able  to  exonerate  themselves  from  the  debts  contracted 
during  the  marriage,  by  renouncing  the  partnership  or  community  of  gains. 

2  L.  268 ;  11  R.  266,  814  ;  3  R.  329 ;  3  A.  269. 

Art.  2380. — The  wife  who  renounces,  loses  every  sort  of  right  to 
the  effects  of  the  partnership  or  community  of  gains. 

But  she  takes  back  all  her  effects,  whether  dotal,  extra-dotal,  here- 
ditary, or  proper. 

7  L.  292 ;  4  A.  509. 

Art.  2381. — The  wife  who  took  an  active  concern  in  the  effects  of 
the  community,  cannot  renounce  the  same. 

Acts  which  are  simply  administrative  or  conservatory,  do  not  come 
here  under  the  denomination  of  active  concern. 

Art.  2382. — The  surviving  wife,  who  wi.shes  to  preserve  the  power 
of  renouncing  the  community  of  gains,  must  make  an  inventory  within 
the  terms  and  with  the  formalities  prescribed  for  the  beneficiary  heir. 

12  R.  113;  3  A.  209. 

Art.  2383. — She  ought  also  to  make  her  renunciation,  within  the 
same  terms  which  are  allowed  for  the  beneficiary  heir  to  explain  his  in- 
tentions. 

After  the  expiration  of  these  delays,  she  may  be,  in  the  same  manner, 
forced  to  make  her  decision,  and  judgment  may  be  rendered  against  her 
as  a  partner,  unless  she  renounces. 

2  A.  575. 

Art.  2384. — The  renunciation  of  the  partnership  by  the  wife  must 
be  made  before  a  notary  and  two  witnesses. 

Art.  2385. — Her  linen  and  clothes  shall  not,  in  any  case,  be  com- 
prised in  the  inventory  ;  she  has  a  right  to  take  them  without  any  for- 
mality. 

Art.  2386. — The  widow,  above  the  age  of  majority,  who  has  allowed 
a  judgment  to  pass  against  her  as  a  partner,  by  a  court  of  unlimited 
jurisdiction,  shall  lose  the  power  of  renouncing. 

Art.  2387. — The  widow,  who  has  concealed  or  made  away  with  any 
of  the  effects  of  the  partnership  or  community  of  gains,  is  declared  to 
be  concerned  in  common,  notwithstanding  her  renunciation.     It  is  the 
same  with  respect  to  her  heirs. 
21 


322  OF  MARRIAGE  CONTRACTS. 

Art.  2388.' — If  the  widow  dies  before  the  expiration  of  the  above 
fixed  delay,  without  having  made  or  closed  the  inventory,  the  heirs 
shall  be  allowed,  for  the  purpose  of  making  or  closing  it,  another  term 
of  equal  length,  to  begin  from  the  day  of  the  death  of  the  widow,  and 
of  thirty  days  more  to  deliberate,  after  the  inventory  shall  have  been 
closed. 

If  the  widow  dies  after  the  inventory  was  closed,  her  heirs  shall  bo 
allowed,  to  deliberate  another  term  of  thirty  days,  to  begin  from  her 
death. 

They  may,  however,  renounce  the  partnership  or  community  of  gains, 
according  to  the  forms  above  established. 

Art.  2389. — The  wife,  separated  from  bed  and  board,  who  has  not, 
withir  the  delays  above  fixed,  to  begin  from  the  separation  finally  pro- 
nounced, accepted  the  community,  is  supposed  to  have  renounced  the 
same ;  unloi^s,  being  still  within  the  term,  she  has  obtained  a  prorogation 
from  the  judge,  after  the  husband  was  heard,  or  after  he  was  duly  sum- 
moned. 

Art.  2390. — The  creditors  of  the  wife  may  attack  the  renunciation, 
which  may  have  been  made  by  her  or  by  her  heirs  with  a  view  to 
defraud  her  creditorf^,  and  accept  the  community  of  gains  in  their  own 
names. 

Art.  2391. — The  widow,  whether  she  accept  or  renounce,  has  a  right, 
during  the  delays  which  are  granted  to  her  to  make  an  inventory  and 
deliberate,  to  receive  her  maintenance  and  that  of  her  servants  out  of 
the  provisions  in  store ;  and  if  there  be  none,  she  has  a  right  to  borrow 
on  account  of  the  common  stock,  on  the  condition,  however,  of  using  the 
privilege  with  moderation. 

She  owes  no  rent  for  the  residence  she  may  have  made,  during  such 
term,  in  a  house  appertaining  to  the  community  or  belonging  to  the  heirs 
of  the  husband  ;  and  if  the  hoiTse,  whicli  both  husband  and  wife  did'' 
inhabit  at  the  time  of  the  dissolution  of  the  marriage,  was  rented  by 
them,  the  wife  shall  not  contribute,  during  the  same  term,  to  the  pay- 
ment of  the  rent,  which  shall  be  taken  out  of  what  belongs  to  the  whole. 

Art.  2392. — In  case  of  the  dissolution  of  the  marriage  by  the  death 
of  the  wife,  her  heirs  may  renounce  the  partnership  or  community  of 
gains,  within  the  term  and  according  to  the  forms  which  the  law  pre- 
Bcribes  to  the  surviving  wife. 


§  2. — Of  the  Modified  or  Limited  Community. 

Art.  2393. — Married  persons  may,  by  their  marriage  contract, 
modify  the  legal  community,  as  they  think  fit,  cither  by  agreeing  that 
the  portions  shall  be  unequal,  or  by  specifying  the  property,  belonging 
to  either  of  them,  of  which  the  fruits  shall  not  enter  into  the  part- 
nership. 

ir  L.  252 ;  12  R.  578. 


323  OF  MARRIAGE  CONTRACTS.  323 

Section  V. — Of  the  Clause  of  Separation  of  Fropcrtij. 

Art.  2394. — Married  persons  may  stipulate  that  there  shall  be  no 
partnership  between  them. 

3  K.  462. 

Art.  2395. — In  this  ease,  the  wife  preserves  the  entire  administra- 
tion of  her  movable  and  immovable  property,  and  the  free  enjoyment 
of  her  revenues. 

Art.  2396. — She  may  alienate  her  real  and  personal  property,  in  the 
manner  and  in  the  cases  above  provided  for  with  respect  to  paraphernal 
property. 

Art.  2397. — Each  of  the  married  persons  separated  contributes  to 
the  expenses  of  the  marriage,  in  the  manner  agreed  on  by  their  c^.-^tract ; 
if  there  be  no  agreement  on  the  subject,  the  wife  contributps  to  the 
amount  of  one-half  of  her  income. 

Art.  239S. — When  the  wife,  who  is  separated,  has  left  the  enjoyment 
of  her  property  to  her  husband  without  any  procuration,  he  is  only  an- 
swerable for  the  fruits  existing,  whether  a  demand  of  them  be  made  by 
his  wife,  or  if  it  is  not  made,  until  the  dissolution  of  the  marriage.  He 
is  not  accountable  for  the  fruits  which  have  been  previously  consumed. 


CHAPTER  III. 

OF    THE    SEPARATION    OF    rROPERTY    PRAYED    FOR    BY   THE  WIFE  DURING 

MARRIAGE. 

Art.  2399. — The  wife  may,  during  the  marriage,  petition  against 
the  husband  for  a  separation  of  property,  whenever  her  dowry  is  in  dan- 
ger, owing  to  the  mismanagement  of  her  husband,  or  otherwise,  or  when 
the  disorder  of  his  affairs  induces  her  to  believe  that  his  estate  may  not 
be  sufficient  to  meet  her  rights  and  claims. 

8N.  S.  231;  10  L.  138;  4  A.  65. 

Art.  2100. — The  neglect  to  reinvest  the  dotal  effects  of  the  wife,  in 
cases  where  the  law  directs  such  reinvestment,  is  also  sufficient  cause  for 
the  wife  to  demand  a  separation  of  property. 

Art.  2401. — Separation  of  property  must  be  petitioned  for  and  or 
dered  by  a  court  of  justice,  after  hearing  all  parties.  It  can,  in  no  case, 
be  referred  to  arbitration. 

Every  voluntary  separation  of  property  is  null,  both  as  respects  third 
persons  and  the  husband  and  wife  between  themselves. 

Art.  2402. — The  separation  of  property,  although  decreed  by  a 
court  of  justice,  is  null,  if  it  has  not  been  executed  by  the  payment  of 
the  rights  and  claims  of  the  wife,  made  to  appear  by  an  authentic  act,  as 
far  as  the  estate  of  the  husband  can  meet  them,  or  at  least  by  a  bo7ia 
fide  non-interrupted  suit  to  obtain  payment. 

11  L.  533,  537;  1  R.  431 ;  8  R.  82S;  7  R.  73;  1  A.  809  ;  4  A.  613;  6  A.  212. 

Art.  2403. — The  separation  of  property,  obtained  by  the  wife,  must 
be  published  three  times,  both  in  the  English  and  French  languages, 


324  OF  MARRIAGE  CONTRACTS. 

in  the  public  papers,  at  farthest  within  three  months  after  the  judgment 
which  ordered  the  same. 

If  there  be  no  paper  published  in  the  place  where  the  judgment  is 
rendered,  the  publication  must  be  made  in  that  which  is  published  in  the 
place  nearest  to  it. 

See  1  N.  S.  563. 

Art.  2404. — The  wife,  who  has  obtained  the  separation  of  property, 
may,  nevertheless,  accept  the  partnership  or  community  of  gains,  which 
has  existed  till  that  time,  if  it  be  her  interest  so  to  do,  and  upon  her 
contributing,  in  case  of  acceptance,  to  pay  the  common  debts. 

She  retakes,  besides,  her  dowry  and  all  she  brought  in  marriage,  or 
which  fell  to  her  during  the  marriage,  in  effects  hereditary  or  proper. 

Art.  2405. — The  separation  of  property  does  not  impart  to  the  wife 
any  of  the  rights  of  a  surviving  wife  ;  but  she  keeps  the  right  of  exercis- 
ing them,  in  case  of  the  death  of  her  husband. 

Art.  2406. — The  ju.dgment,  which  pronounces  the  separation  of  pro- 
perty, is  retroactive  as  far  back  as  the  day  on  which  the  petition  for  the 
same  was  filed. 

6  E.  527. 

Art.  2407. — The  personal  creditors  of  the  wife  cannot,  without  her 
consent,  petition  for  a  separation  of  property  between  her  and  her  hus- 
band. 

Nevertheless,  in  case  of  the  failure  or  discomfiture  of  the  husband, 
they  may  exercise  the  rights  of  their  debtor  to  the  amount  of  their 
credits. 

Art.  2408. — The  creditors  of  the  husband  may  object  to  the  sepa- 
ration of  property  decreed  and  even  executed  with  a  view  to  defraud 
them.  They  may  even  become  parties  to  the  suit  concerning  the  petition 
for  a  separation  of  property,  and  be  heard  against  it. 

16  L.  26T  ;  10  E.  74 ;  1  A.  808 ;  4  A.  513. 

Art.  2409. — The  wife,  who  has  obtained  the  separation  of  property, 
must  contribute,  in  proportion  to  her  fortune,  and  to  that  of  her  husband, 
both  to  the  household  expenses  and  to  those  of  the  education  of  their 
children. 

She  is  bound  to  support  those  expenses  alone,  if  there  remains  nothing 
to  her  husband. 

19  L.  553,  579 ;  See  2366 ;  6  A.  199. 

Art.  2410. — The  wife  separated,  whether  in  person  and  property  oi 
in  property  only,  has  again  the  free  administration  of  her  estate.  She 
may  dispose  of  her  movable  property  and  alienate  the  same.  She  can- 
not alienate  her  immovable  property  without  the  consent  of  her  hus- 
band, or,  if  he  should  refuse  it,  without  being  authorized  by  the  judge. 

See  amendment  to  Article  125 ;  2  E.  1 ;  8  E.  467 ;  2  A.  771. 

Art.  2411. — The  wife,  whether  separated  in  property  by  contract 
or  judgment,  or  not  separated,  cannot,  except  by  and  with  the  authori- 
zation of  the  husband,  and  in  default  of  the  husband,  with  that  of  the 
judge,  alienate  her  immovable  effects  of  whatever  nature  they  may  be, 
before  the  dissolution  of  the  marriage,  except  in  cases  where  the  aliena- 
tion of  the  dotal  immovable  is  permitted. 

2  L.  268 ;  See  8  E.  457;  2  A.  771. 

Art.  2412. — The  wife,  whether  separated  in  property  by  contract 


325  OF  SALE.  325 

or  by  judgment,  or  not  separated,  cannot  bind  berself  for  her  husband, 
nor  conjointly  with  him,  for  debts  contracted  by  him  before  or  during 
the  marriage. 

7  N.  S.  251 ;  9  L.  5S5 ;  10  L.  14G ;  11  L.  136 ;  1  R.  212 ;  8  R.  ISl ;  10  R.  CS ;  12  R.  82, 5TS ;  1  A.  49,  801, 
428,  444 ;  2  A.  3, 579,  873 ;  3  A.  417,  428  ;  6  A.  455 ;  See  2  A.  372 ;  3  A.  658 ;  5  A.  173, 187,  572. 


TITLE  VIL 

OF  SALE. 

CHAPTER  I. 

OF  THE  NATURE  AND  FORM  OF  THE  CONTRACT  OF  SALE. 

Art.  2413. — In  all  cases,  where  no  .special  pr(ivision  is  made  under 
the  present  title,  the  contract  of  sale  is  subjected  to  the  general  rules 
established  under  the  title  of  conventional  obligations. 

12  R.  474 ;  2  A.  912 ;  See  6  L.  415;  1  A.  249. 

Art.  2414. — The  contract  of  sale  is  an  agreement,  by  which  one 
gives  a  thing  for  a  price  in  current  money,  and  the  other  gives  the  price 
in  order  to  have  the  thing  itself. 

Three  circumstances  concur  to  the  perfection  of  the  contract,  to  wit : 
the  thing  sold,  the  price  and  the  consent. 

1  L.  8S3 ;  6  L.  346 ;  13  L.  382 ;  2  R.  523 ;  6  R.  4r)0 ;  11  R.  349 ;  Sm  1  R.  26 ;  2  R.  92  ;  3  R.  331 ;  12  R. 

51,  474 ;  See  2439. 

Art.  2415. — All  sales  of  immovable  property  or  slaves  shall  be 
made  by 'authentic  act,  or  under  private  signature. 

All  verbal  sale  of  any  of  these  things  shall  be  null,  as  well  for  third 
persons  as  for  the  contracting  parties  themselves,  and  the  testimonial 
proof  of  it  shall  not  be  admitted. 

2  L.  593 ;  4  L.  1G9  -,  12  R.  474 ;  1  A.  72,  299,  459 ;  Sec  8  M.  443 ;  4  ^I.  210 ;  7  N.  S.  661 ;  2  L.  460 ;  8 

R.  236 ;  See  2255,  2256,  2961. 

Art.  24  1G. — The  verbal  sale  of  all  movable  effects,  whatever  may 
bo  their  value,  is  valid ;  but  its  testimonial  proof  must  be  made  agree- 
ably to  what  is  directed  in  the  title  of  amventioial  obligations. 

5  L.  460 ;  1  A.  299. 

Art.  2417. — The  sale  of  any  immovable  or  slaves,  made  under  pri- 
vate signature,  shall  have  effect  against  the  creditors  of  the  parties,  and 
against  third  persons  in  general,  only  from  the  day  such  sale  was  regis- 
tered in  the  office  of  a  notary,  and  the  actual  delivery  of  the  things  sold 
took  place. 

But  this  defect  of  registering  shall  not  be  pleaded  between  the  par- 
ties who  shall  have  contracted  in  such  act,  tlicir  heirs  or  assigns,  who 
are  as  effectually  bound  by  a  sale  made  under  private  signature,  as  if  it 
were  by  an  authentic  act. 

8  L.  160 ;  9  L.  385 ;  14  L.  426 ;  16  L.  43-3,  442.  454 ;  1  A.  72,  249  •  2  A.  912  ;  4  A.  202 ;  Sec  2242. 


326        •  OF  SALE. 

Art.  2418. — He  who  is  already  tlie  owner  of  a  thing,  cannot  validly 
purchase  it.  If  he  buys  it  through  error,  thinking  it  the  property  of 
another,  the  act  is  null,  and  the  price  must  be  restored  to  him. 

14  L.  559  ;  15  L.  891 ;  See  25S9. 

Art.  2419. — The  sales  of  immovable  property  jor  slaves,  made  by 
parents  to  their  children,  may  be  attacked  by  the  forced  heirs,  as  con- 
taining a  donation  in  disguise,  if  the  latter  can  prove  that  no  price  has 
been  paid,  or  that  the  price  was  below  one-fourth  of  the  real  value  of 
the  immovable  or  slaves  sold,  at  the  time  of  the  sale 


CHAPTER  11. 

OF  PERSONS  CAPABLE  OF  BUYING  AND  SELLING. 

Art.  2420. — All  persons  may  buy  and  sell,  except  those  interdicted 
by  law. 

Art.  2421. — A  contract  of  sale,  between  husband  and  wife,  can  take 
place  only  in  the  three  following  cases  : 

1.  When  one  of  the  spouses  makes  a  transfer  of  property  to  the 
other,  who  is  judicially  separated  from  him  or  her,  in  payment  of  his  or 
her  rights  ; 

1  A.  301 ;  2  A.  483 ;  5  A.  631. 

2.  When  the  transfer  made  by  the  husband  to  his  wife,  even  though 
not  separated,  has  a  legitimate  cause,  as  the  replacing  of  her  dotal  or 
other  eflFects  alienated  ; 

4  N.  S.  402 ;  16  L.  1,  5 ;  5  A.  631 ;  Seo  11  L.  559 ;  2  A.  4S3  ;  4  A.  65 ;  Seo  1982, 1989. 

3.  When  the  wife  makes  a  transfer  of  property  to  her  husband,  in 
payment  of  a  sum  promised  to  him  as  a  dowry. 

Saving  in  these  three  cases  to  the  heirs  of  the  contracting  parties, 
their  rights,  if  there  exist  any  indirect  advantage. 

Art.  2422. — Public  officers  connected  with  courts  of  justice,  such  as 
judges,  advocates,  attorneys,  clerks  and  sheriffs,  cannot  purchase  liti- 
gious rights,  which  fall  under  the  jurisdiction  of  the  tribunal  in  which 
they  exercise  their  functions,  under  penalty  of  nullity,  and  of  having  to 
defray  all  costs,  damages  and  interest. 

6  E.  172 ;  1  A.  316 ;  2  A.  60,  259,  487 :  3  A.  552 ;  4  A.  1T3. 

CHAPTER    III. 

OF    THINGS    WHICH    MAY    BE    SOLD. 

Art.  2423. — Any  eflFects  of  commerce  may  be  sold,  when  there  exists 
no  particular  laws  to  prohibit  the  traffic  therein. 

Art.  2424. — Not  only  corporeal  objects,  such  as  movables  and 
immovables,  slaves,  live  stock  and  produce,  may  be  sold,  but  also  incor- 
poreal things,  such  as  a  debt,  an  inheritance,  a  servitude,  or  any  other 
rights. 

17  L.  309,  445. 


327  OF  SALE  .  327 

Art.  2425. — A  sale  is  sometimes  made  of  a  thing  to  come,  as  of 
what  shall  accrue  from  an  inheritance,  of  slaves  or  creatures  yet  unborn, 
or  such  like  other  things,  although  not  yet  existing. 

3  L.  154 ;  17  L.  303. 

Art.  2426. — It  also  happens  sometimes  that  an  uncertain  hope  is 
sold,  as  the  fisher  sells  a  haul  of  his  net,  before  he  throws  it,  and  although 
he  should  catch  nothing,  the  sale  still  exists,  because  it  was  the  hope 
that  was  sold,  together  with  the  right  to  have  what  might,  be  caught. 

3  L.  154;  15  L.  340 ;  17  L.  445. 

Art.  2427. — The  sale  of  a  thing  belonging  to  another  person,  is 
null ;  it  may  give  rise  to  damages,  when  the  buyer  knew  not  that  the 
thing  belonged  to  another  person. 

5  R.  76, 193  ;  9  E.  2S3 ;  11  R.  16 ;  12  E.  62C ;  1  A.  2S4 ;  4  A.  458 ;  6  A.  7. 

Art.  2428. — The  thing,  claimed  as  the  property  of  the  claimant, 
cannot  be  alienated,  pending  the  action,  so  as  to  prejudice  his  right. 
If  judgment  be  rendered  for  him,  the  sale  is  considered  as  a  sale  of  an- 
other's property,  and  does  not  prevent  him  from  being  put  in  possession 
by  virtue  of  such  judgment. 

13  L.  257 ;  10  E.  113 ;  2  A.  254 ;  3  A.  24S ;  4  A.  293. 

Art.  2429. — The  succession  of  a  living  person  cannot  be  sold. 

Art.  2430. — If,  at  the  moment  of  the  sale,  tlie  thing  sold  is  totally 
destroyed,  the  sale  is  null ;  if  there  is  only  a  part  of  the  tiling  destroyed, 
the  purchaser  has  the  choice,  cither  to  abandon  the  sale,  or  to  retain  the 
preserved  part,  by  having  the  price  thereof  determined  by  appraisement. 


CHAPTER  IV. 

now  THE  CONTRACT  OF  SALE  IS  TO  BE  RERFORMED. 

Art.  2431. — The  sale  is  considered  to  be  perfect  between  the  parties, 
and  the  property  is  of  right  acquired  to  the  purchaser  with  regard  to  the 
seller,  as  soon  as  there  exists  an  agreement  for  the  object  and  for  the 
price  thereof,  although  the  object  has  not  yet  been  delivered,  nor  the 
payment  made. 

3L.  178;  6L.  415;  13  L.  257,  261 ;  17  L.  359;  19  L.  237;  IE.  26;  2R.  92;  3E.  331;  11  E.  349; 
12  E.  474 ;  2  A.  746 ;  5  A.  656 ;  6  A.  84. 

Art.  2432. — The  sale  may  be  made  purely  and  simply,  or  under  a 
condition  either  suspensive  or  resolutive.  The  object  of  the  sale  may 
also  be  to  have  two  or  several  alternative  things. 

In  all  these  cases,  its  effects  are  regulated  by  the  principles  laid  down 
in  the  title  of  conventional  obligations. 

Art.  2433. — When  goods,  produce,  or  other  objects,  are  not  sold  in 
a  lump,  but  by  weight,  by  tale,  or  by  measure,  the  sale  is  not  perfect, 
inasmuch  as  the  things  so  sold  are  at  the  risk  of  tlie  seller,  until  tliey  be 
weighed,  counted  or  measured ;  but  the  buyer  may  require  either  the 
delivery  of  them  or  damages,  if  any  be  for  the  same,  in  case  of  non-exe- 
cution of  the  contract. 

12  E.  61. 


328  ~  OF  SALE. 

Art.  2434. — If,  on  the  contrar}-,  the  goods,  produce,  or  other  objects, 
have  been  sold  in  a  lump,  the  sale  is  perfect,  though  these  objects  may 
not  have  been  weighed,  counted  or  measured. 

Art.  2435. — Things,  of  which  the  buyer  reserves  to  himself  the  view 
and  trial,  although  the  price  be  agreed  on,  are  not  sold,  until  the  buyer 
be  satisfied  with  tlie  trial,  which  is  a  kind  of  susjjensive  condition  of  the 
sale. 

Art.  2436. — The  sale  of  a  thing  includes  that  of  its  accessories,  and 
of  whatever  has  been  destined  for  its  constant  use,  unless  there  be  a  re- 
servation to  the  contrary. 

Art.  2437. — A  promise  to  sell  amounts  to  a  sale,  when  there  exists 
a  reciprocal  consent  of  both  parties,  as  to  the  thing  and  the  price  there- 
of; but,  to  have  itii  effect,  either  between  the  contracting  parties  or  with 
regard  to  other  persons,  the  promise  to  sell  must  be  vested  with  the  same 
formalities,  as  are  above  prescribed  in  articles  2414  and  241.5  concern- 
ing sales,  in  all  cases  where  the  law  directs  that  the  sale  be  committed 
to  writing. 

3  N.  S.  5S3 ;  IT  L.  450  ;  11  E.  349  ;  12  E.  474 ;  1  A.  4.59 ;  See  2  L.  4G0. 

Art.  2438. — But  if  the  promise  to  sell  has  been  made  with  the  giv- 
ing of  earnest,  each  of  the  contracting  parties  is  at  liberty  to  recede  from 
the  promise,  to  wit :  he  who  has  given  the  earnest,  by  forfeiting  it ;  and 
he  who  has  received  it,  by  returning  the  double. 

17  L.  450. 

Art.  2439. — The  price  of  the  sale  must  be  certain,  that  is  to  say, 
fixed  and  determined  by  the  parties. 

It  ought  to  consist  of  a  sum  of  money,  otherwise  it  would  be  consid- 
ered as  an  exchange. 

It  ought  to  be  serious,  that  is  to  say,  there  should  have  been  a  seri 
ous  and  true  agreement  that  it  should  be  paid. 

It  ought  not  to  be  out  of  all  proportion  with  the  value  of  the  thing ; 
for  instance,  the  sale  of  a  plantation  for  a  dollar  could  not  be  considered 
as  a  fair  sale ;  it  would  be  considered  as  a  donation  disguised. 

6  L.  349  ;  13  L.  8S2. 

Art.  2440. — The  price,  however,  may  be  left  to  the  arbitration  of  a 
third  person ;  but  if  such  person  cannot,  or  be  unwilling  to  make  the  es- 
timation, there  exists  no  sale. 

Art.  2441. — The  expenses  of  the  act  or  other  incidental  costs  of  sale, 
are  chargeable  to  the  buyer,  unless  some  agreement  be  made  to  the  con- 
trary. 

CHAPTER  V. 

AT    WHOSE    RISK    IS    THE    THING    SOLD  AFTER   THE    SALE    IS    COMPLETED. 

Art.  2442. — As  soon  as  the  contract  of  sale  is  completed,  the  thing 
sold  is  at  the  risk  of  the  buyer,  but  with  the  following  modifications. 

12  E.  51 ;  2  A.  654,  746. 

Art.  2443. — Until  the  thing  sold  is  delivered  to  the  buyer,  the  seller 
is  obliged  to  guard  it  as  a  faithful  administrator ;  and  if,  through  want 
of  this  care,  the  thing  is  destroyed,  or  its  value  diminished,  the  seller  is 
responsible  for  the  loss. 

2  E.  60,  90. 


329  OF  SALE.  329 

Art.  2444. — He  is  released  from  this  degree  of  care,  when  the  buyer 
delays  obtaining  the  possession  ;  but  he  is  still  liable  for  any  injury  which 
the  thing  sold  may  sustain,  through  gross  neglect  on  his  part. 

2  E.  60,  90. 

Art.  2445. — If  it  is  the  seller  who  delays  to  deliver  the  thing,  and 
it  be  destroyed,  even  by  a  fortuitous  event,  it  is  he  who  sustains  the  loss, 
unless  it  appear  certain  that  the  fortuitous  event  would  equally  have  oc- 
casioned the  destruction  of  the  thing  in  the  buyer's  possession,  after 
delivery. 

ic  L.  10. 

Art.  2446. — A  sale,  made  with  a  suspensive  condition,  does  not  trans- 
fer the  property  to  the  buyer,  until  the  fulfilment  of  the  condition. 

If  the  thing  be  destroyed  before  this  happens,  the  loss  is  sustained 
by  the  seller. 

If  the  thing  be  only  deteriorated,  when  the  condition  is  accomplished, 
the  buyer  has  the  choice,  either  to  take  it  in  the  state  in  which  it  is,  or 
to  dissolve  the  contract. 

If  it  has  undergone  any  improvement  without  the  agency  of  the  seller, 
the  buyer  has  the  advantage  of  this  improvement,  without  having  to  pay 
any  increase  of  price. 

Art.  2447. — In  alternative  sales,  whether  the  choice  be  left  to  the  sell- 
er, or  be  expressly  granted  to  the  buyer,  the  first  of  the  two  things  which 
perishes  after  the  contract,  is  a  loss  to  the  seller,  and  he  must  give  up 
that  which  remains.  But  if  that  which  remains  also  perish,  it  is  the 
buyer's  loss,  and  he  must  pay  the  price  of  it. 

Art.  2448. — In  the  case  specified  in  the  above  article,  when  the 
choice  is  reserved  to  the  buyer,  he  may  recede  from  the  contract,  if  one 
of  the  things  has  perished,  provided  he  has  not  delayed  to  be  put  in  pos- 
session. 

CHAPTER  VI. 

OF  THE  OBLIGATtONS  OF  THE  SELLER. 

Art.  2449. — The  seller  is  bound  to  explain  himself  clearly  respecting 
the  extent  of  his  obligations  :  any  obscure  or  ambiguous  clause  is  con- 
strued against  him. 

13  L.  257;  4  R.  815;  5  R.  75;  10  R.  5;  2  A.  135;  3  A.  192;  4  A.  109. 

Art.  2450. — The  seller  is  bound  to  two  principal  obligations,  that  of 
delivering  and  that  of  warranting  the  thing  which  he  sells. 

9R.351;4A.  400;5  A.  5T7. 

Art.  245 1 . — The  warranty  respecting  the  seller  has  two  objects ;  the 
first  is  the  buyer's  peaceable  possession  of  the  thing  sold,  and  the  second 
is  the  hidden  defects  of  the  thing  sold,  or  its  redhibitory  vices. 

12  L.  173 ;  3  A  377 ;  5  A.  577 ;  C  A.  396. 

Section  I. — Of  the  Tradition  or  Delivery  of  the  Thing  Sold. 

Art.  2452. — The  tradition  or  delivery  is  the  transferring  of  the  thing 
lold  into  the  power  and  possession  of  the  buyer. 

18  L.  235;  12  K.  51. 


330  OF  SALE. 

Art.  2453. — Tlie  tradition  or  delivery  of  movable  eifects  takes  place 
either  by  their  real  tradition,  or  by  the  delivery  of  the  keys  of  the  build- 
ings in  which  they  are  kept;  or,  even  by  the  bare  consent  of  the  parties, 
if  the  things  cannot  be  transported  at  the  time  of  sale,  or  if  the  purchaser 
had  them  already  in  his  possession  under  another  title. 

IS  L.  37T ;  12  R.  51. 

Art.  2454. — The  tradition  or  delivery  of  slaves,  takes  place  either 
by  real  delivery  made  to  the  buyer,  or  by  the  mere  consent  of  the  parties, 
when  the  sale  mentions  that  the  thing  has  been  sold  and  delivered  to  the 
buyer,  or  when  the  buyer  was  already  in  possession  under  another  title. 

Art.  2455. — The  law  considers  the  tradition  or  delivery  of  immo- 
vables, as  always  accompanying  tlie  public  act,  which  transfers  the  pro- 
perty. Every  obstacle  which  the  seller  afterwards  interposes  to  prevent 
the  corporal  possession  of  the  buyer,  is  considered  as  a  trespass. 

3  L.  ITS ;  13  L.  235 ;  1  K.  321;  9  R.  514;  10  R.  425;  2A.  787,  70S;  4A.400;  5  A.  577. 

Art.  2456. — In  all  cases  where  the  thing  sold  remains  in  the  posses- 
sion of  the  seller,  because  he  has  reserved  to  himself  the  usufruct,  or  re- 
tains possession  by  a  precarious  title,  there  is  reason  to  presume  that  the 
sale  is  simulated,  and  with  respect  to  third  persons,  the  parties  must 
produce  proof  that  they  are  acting  in  good  faith,  and  cstablisli  the  reality 
of  the  sale. 

4L.  340;  6L.  542;  11  L.  276;  5K.  IS;  7R.  434;  1  A.  132  ;  2  A.  912;  «A.  1,  49;  6  A.  25,  43S. 

Art.  2457. — The  tradition  of  the  incorporeal  rights  is  to  be  made 
either  by  the  delivery  of  the  titles  and  of  the  act  of  transfer,  or  by  the 
use  made  by  the  purchaser,  with  the  consent  of  the  seller. 

Art.  2458. — When  the  object  sold  is  out  of  the  vendor's  possession, 
he  must  redeem  it  at  his  cost,  and  deliver  it  to  the  buyer,  unless  it  be 
diflfexently  agreed  between  the  parties,  or  unless  it  evidently  appears 
from  the  contract,  that  the  buyer  himself  has  undertaken  to  reclaim  it. 

Art.  2459. — The  costs  of  delivery  are  chargeable  to  the  seller,  and 
those  of  removing  are  to  be  supported  by  the  buyer,  if  there  has  been  no 
stipulation  made  to  the  contrary. 

Art.  24G0. — The  delivery  must  be  made  on  the  place  where  the  thing, 
which  is  the  object  of  the  sale,  was  at  the  time  of  such  sale,  if  not  other- 
wise agreed  upon. 

Art.  24G1. — If  the  seller  fails  to  make  the  delivery  at  the  time 
agreed  on  between  the  parties,  the  buyer  will  be  at  liberty  to  demand, 
either  a  cancelling  of  the  sale,  or  his  being  put  in  possession,  if  the  delay 
is  occasioned  only  by  the  deed  of  the  .seller. 

10  K.  423 

Art.  2462. — In  all  cases,  the  seller  is  liable  to  damages,  if  there  re- 
sult any  detriment  to  the  buyer,  occasioned  by  the  non-delivery  at  the 
time  agreed  on. 

Art.  2463. — The  seller  is  not  bound  to  make  a  delivery  of  the  thing, 
if  the  buyer  does  not  pay  the  price,  and  the  seller  has  not  granted  him 
any  term  fur  the  payment. 

Art.  24G4. — Neither  shall  he  be  obliged  to  the  delivery,  even  if  he 
has  granted  a  term  for  the  payment,  if  since  the  sale  the  buyer  is  become 


331  OF  SALE.  331 

a  bankrupt,  or  is  in  a  state  of  insolvency,  so  that  the  seller  would  be  in 
imminent  danger  of  losing  the  price  of  the  same,  unless  the  buyer  should 
give  him  security  to  pay  at  the  time  agreed  on. 

Art.  2465. — The  thing  must  be  delivered  in  the  same  state  in  which 
it  was  at  the  time  of  the  sale,  that  is  to  say,  without  any  change  occa- 
sioned by  the  act  or  fault  of  the  seller. 

From  the  day  of  sale  all  the  profits  belong  to  the  purchaser. 

Art.  2466. — The  obligation  of  delivering  the  thing  includes  the  ac- 
cessories and  dependencies,  without  which  it  would  be  of  no  value  or 
service,  and  likewise  every  thing  that  has  been  designed  to  its  perpetual 
use. 

Art.  2467. — The  seller  is  bound  to  deliver  the  full  extent  of  the 
premises,  as  specified  in  the  contract,  under  the  modifications  hereafter 
expressed. 

Art.  2468. — If  the  sale  of  an  immovable  has  been  made  with  indi- 
cation of  the  extent  of  the  premises  at  the  rate  of  so  much  per  measure, 
the  seller  is  obliged  to  deliver  to  the  buyer,  if  he  requires  it,  the  quan- 
tity mentioned  in  the  contract,  and  if  he  cannot  conveniently  do  it,  or  if 
the  buyer  does  not  require  it,  the  seller  is  obliged  to  suflPer  a  diminution 
proportionate  to  the  price. 

Art.  2469. — If,  on  the  other  hand,  there  exists  an  extent  of  more 
than  what  is  specified  in  the  contract,  the  buyer  has  a  right,  cither  to 
give  the  supplement  of  the  price,  or  to  recede  from  the  contract,  should 
the  overplus  be  upwards  of  a  twentieth  part  of  the  extent  which  is  de- 
clared. 

Art.  2470. — In  all  other  cases,  whether  the  sale  be  of  a  certain  and 
limited  body,  or  of  distinct  and  separate  objects,  whether  it  first  set  forth 
the  measure,  or  the  designation  of  the  object,  followed  by  its  measure, 
the  expression  of  the  measure  gives  no  room  to  any  supplement  of  price, 
in  favor  of  the  seller,  for  the  overplus  of  the  measure ;  neither  can  the 
purchaser  claim  a  diminution  of  the  price  on  a  deficiency  of  the  measure, 
unless  the  real  measure  comes  short  of  that  expressed  in  the  contract,  by 
one-twentieth  part,  regard  being  had  to  the  totality  of  the  objects  sold ; 
provided  there  be  no  stipulation  to  the  contrary. 

1  N.  S.  179  ;  5  L.  358  ;  IG  L.  IST. 

Art.  2471. — There  can  be  ucitlier  increase  nor  diminution  of  price 
on  account  of  disagreement  in  measure,  when  the  object  is  designated 
by  the  adjoining  tenements,  and  sold  from  boundary  to  boundary. 

8  L.  91 ;  7L;  459;  16  L.  187,  338,  497;  18  L.  526,  530;  2  A.  809;  19  L.  422;  2  R.  857;  See  12  M.  428; 

15  L.  204;  9  K.  .30. 

Art.  2472. — In  the  case,  where  there  is  room  for  an  augmentation  of 
price  for  the  surplus  of  the  measure,  the  buyer  has  the  option  to  give  the 
supplement,  or  to  recede  from  the  contract. 

Art.  2473. — In  all  ca.ses,  where  the  buyer  has  a  right  to  recede  from 
the  contract,  the  seller  is  bound  to  make  him  restitution,  not  only  of  the 
price,  if  already  received,  but  also  of  the  expenses  occasioned  by  the  con- 
tract. 

Art.  2474. — The  action  for  supplement  of  the  price  on  the  part  of 
the  seller,  and  that  for  diminution  of  the  price,  or  for  the  cancelling  of 


332  OF  SALE. 

the  contract  on  the  part  of  the  buyer,  must  be  brought  within  one  year 
from  the  da}'  of  the  contract,  otherwise  it  is  barred. 

5  E.  SS ;  1  A.  840. 

Art.  2475. — If  two  pieces  of  ground  have  been  sold  by  one  and  the 
same  contract  with  the  expression  of  the  measure  for  each,  and  there  be 
found  a  less  quantity  in  one,  and  a  larger  one  in  the  other,  the  deficiency 
of  the  one,  is  supplied  by  the  overplus  of  the  other,  as  far  as  it  goes, 
and  the  action,  either  in  supplement  or  in  abatement  of  the  price,  takes 
place  only  according  to  the  rules  above  established. 

Section  II. — Of  the  Warranty  in  case  of  Eviction  of  tlic  Thing  sohl. 

Art.  2476. — The  eviction  is  the  loss  suffered  by  the  buyer  of  the  to- 
tality of  the  thing  sold  or  of  a  part  thereof,  occasioned  by  the  riiiht  or 
claims  of  a  third  person. 

13L.19;  UK.  397. 

Art.  2477. — Although  at  the  time  of  the  sale  no  stipulations  have 
been  made  respecting  the  warranty,  the  seller  is  obliged  of  course  to  war- 
rant the  buyer  against  the  eviction  suffered  by  him  of  the  totality  or 
part  of  the  thing  sold,  and  against  the  charges  claimed  on  that  object, 
which  were  not  declared  at  the  time  of  the  sale. 

Art.  2478. — That  the  warranty  should  have  existence,  it  is  necessary 
that  the  right  of  the  person  evicting  shall  have  existed  before  the  sale. 
If  therefore  this  right  before  the  sale  was  only  imperfect,  and  is  after- 
wards perfected  by  the  negligence  of  the  buyer,  he  has  no  claim  for  war- 
rantv-. 

1  A.  200. 

Art.  2479. — The  parties  may,  by  particular  agreement,  add  to  the 
obligation  of  warranty,  which  results  of  right  from  the  sale,  or  diminish 
its  effect :  they  may  even  agree  that  the  seller  shall  not  be  subject  to  any 
warranty. 

4  K.  20 ;  6  A.  305  ;  See  1757,  2255. 

Art.  2480. — Although  it  be  agreed  that  the  seller  is  not  subject  to 
warranty,  he  is  liowever  accountable  for  what  results  from  his  personal 
act,  and  any  contrary  agreement  is  void. 

6  A.  304;  CL.  550;  Soo  1  M.  149  ;  6M.  63G;  7M.  33;  17  L.  97;  IS  L,  37;  4  E.  155. 

Art.  2481. — Even  in  case  of  stipulation  of  no  warranty,  the  seller, 
in  case  of  eviction,  is  liable  to  a  restitution  of  the  price,  unless  the  buyer 
was  aware,  at  the  time  of  the  sale,  of  the  danger  of  the  eviction,  and 
purchased  at  his  peril  and  risk. 

6  L.  550;  17  L.  309;  5  E.  76;  3  A.  826;  5  A.  314,  667;  6  A.  804. 

Art.  2482. — When  there  is  a  promise  of  warranty,  or  when  no  stipu- 
lation was  made  on  that  subject,  if  the  buyer  be  evicted,  he  has  a  right 
to  claim  against  the  seller  : 

1 .  The  restitution  of  the  price  ; 

8  L.  8S0 ;  See  7  L.  123 ;  9  L.  556. 

2.  That  of  the  fruits  or  revenues,  when  he  is  obliged  to  return  them 
to  the  owner  who  evicts  him ; 

3.  All  the  costs  occasioned,  either  by  the  suit  in  warranty  on  the  part 
of  the  buyer,  or  by  that  brought  by  the  original  plaintiff ; 

6  L.  119 ;  19  L.  8r-7 ;  2  A.  S6S  •  See  7  L.  52 ;  6  A.  299,  304 ;  14  L.  38. 


333  OF  SALE.  333 

4.  In  fine,  tlic  damages,  when  he  has  suffered  any,  besides  the  price 
that  he  has  paid. 

I  Art.  2483. — When,  at  the  time  of  the  eviction,  the  thing  sold  has 
lost  any  of  its  value,  or  is  considerably  impaired,  either  through  the  neg- 
lect of  the  buyer,  or  by  any  providential  acts,  or  unforeseen  accidents, 
the  seller  is  still  bound  to  the  restitution  of  the  full  price. 

Art.  2484. — If,  however,  the  thing  sold  was  impaired  by  the  buyer, 
and  he  has  reaped  some  benefit  therefrom,  the  seller  has  a  right  to  retain 
on  the  price,  the  amount  to  which  such  damages  may  be  estimated  in 
favor  of  the  owner  who  evicts  him. 

4  L.  340. 

Art.  2485. — The  seller  is  bound  to  reimburse,  or  cause  to  be  reim 
bursed,  to  the  buyer,  by  the  person  who  evicts  him,  all  useful  improve- 
ments made  by  him  on  the  premises. 

8  L.  543 ;  7  L.  470 ;  10  R.  ITS ;  3  A.  27S. 

Art.  2486. — If  the  seller,  knowingly  and  dishonestly,  has  sold  the 
property  of  another  person,  he  shall  be  obliged  to  reimburse  to  the  buyer 
all  expenses,  even  those  of  the  embellishments  of  luxury,  that  the  buyer 
has  been  at  in  improving  the  premises. 

7L.  51;  6  A.  303. 

Art.  2487. — If  only  a  part  of  the  thing  sold  be  evicted,  and  it  be  of 
such  consequence  relatively  to  the  whole,  that  the  buyer  would  not  have 
purchased  it  without  the  part  which  is  evicted,  he  may  have  the  sale  can- 
celled. 

6  E.  5GG ;  3  A.  326. 

Art.  2488. — Not  only  eviction  from  part  of  the  thing  sold,  but  evic- 
tion from  that  which  proceeds  from  it,  is  included  in  the  warranty.  Such 
would  be  the  eviction  from  the  child  of  a  slave,  after  the  death  of  the 
mother. 

10  Pv.  12S. 

Art.  2489. — But  if  the  thing  sold  be  succession  rights,  the  eviction 
which  tlie  buyer  might  suffer  from  any  particular  thing  found  among  the 
property  of  the  succession,  does  not  give  rise  to  the  warranty,  because 
in  this  case  the  thing  sold  is  only  the  succession  right,  which  includes 
only  such  things  as  belong  really  to  the  succession. 

Art.  2490. — If  in  case  of  eviction  of  a  part  of  the  thing,  the  sale  is 
not  cancelled,  the  value  of  the  evicted  part  is  to  be  reimbursed  to  the 
buyer  according  to  its  estimate,  proportionably  to  the  total  price  of  the 
sale. 

7L.  50;  5  A.  276. 

Art.  2491. — If  the  inheritance  sold  be  encumbered  with  servitudes 
not  apparent,  without  any  declaration  having  been  made  thereof,  if  the 
servitudes  be  of  such  importance  that  there  is  cause  to  presume  that  the 
buyer  would  not  have  contracted,  if  he  had  been  aware  of  the  encum- 
brance, he  may  claim  the  cancelling  of  the  contract,  should  he  not  prefer 
to  have  an  indemnification. 

Art.  2492. — Other  questions  arising  from  a  claim  of  damages,  result- 
ing to  the  buyer  from  the  non-execution  of  the  contract  of  sale,  shall  be 
decided  by  the  general  rules  established  under  the  title  of  convciitional 
obligations. 


334  OF  SALE. 

Art.  2493. — The  purchaser  threatened  with  eviction,  who  wishes  to 
preserve  his  right  of  warranty  against  his  vendor,  should  notify  the  latter 
in  time  of  the  interference  which  he  has  experienced. 

This  notification  is  usually  given  by  calling  in  the  vendor  to  defend 
the  action  which  has  been  instituted  against  the  purchaser. 

4  A.  129. 

Art.  2494. — In  tjie  absence  of  this  notification,  or  if  it  has  not  been 
made  within  due  time,  that  is,  in  time  for  the  vendor  to  defend  himself, 
the  warranty  is  lost ;  provided,  however,  that  the  vendor  shall  show  that 
he  possessed  proofs,  which  would  have  occasioned  the  rejection  of  the 
demand,  and  which  have  not  been  employed,  because  he  was  not  sum- 
moned in  time. 

lA.l;  2  A.  843;  4  A.  129. 

Art.  2495. — When  the  purchaser  is  himself  obliged  to  commence 
judicial  proceedings  against  a  person  disturbing  his  possession,  he  ought 
to  notify  his  vendor  of  the  action  which  he  is  commencing  ;  and  the  ven- 
dor, whether  he  undertake  to  conduct  the  suit  for  him  or  not,  is  obliged 
to  indemnify  him  fully,  in  case  of  condemnation. 

7  L.  421. 


Section  III. — Of  the  Vices  of  the  Thing  sold. 

§  1. — Of  the  Vices  of  the  Thing  sold,  tcJtich  give  occasion  for  the  Redhibitory 

Action. 

Art.  2496. — Redhibition  is  called  the  avoidance  of  a  sale  on  account 
of  some  vice  or  defect  in  the  thing  sold,  which  renders  it  either  abso- 
lutely useless,  or  its  use  so  inconvenient  and  imperfect,  that  it  must  be 
sui:>posed  that  the  buyer  would  not  have  purchased  it,  had  he  known  of 
the  vice. 

IN.  8.  312;  1L.310;  5L.3G0;  7L.519;  9L.134;  12L.213;  ITL.  101;  Sec  S  M.  813;  2  L.  4G3; 

14  L.  433. 

Art.  2497. — Apparent  defects,  that  is,  such  as  the  buyer  might  have 
discovered  by  simple  inspection,  are  not  among  the  number  of  redhibi- 
tory vices. 

9  L.  129, 132 ;  19  L.  391 ;  8  R.  225 ;  1  A.  889 ;  3  A.  377 ;  5  A.  491 ;  See  2  L.  4GS ;  14  L.  4-32. 

Art.  2498. — Nor  can  the  buyer  institute  the  redhibitory  action,  on 
account  of  the  latent  defects  which  the  seller  has  declared  to  him  before 
or  at  the  time  of  the  sale.  Testimonial  proof  of  this  declaration  may  be 
received. 

IG  L.  340;  8  E.  12;  5  A.  106;  6  A.  724. 

Art.  2499. — With  regard  to  inanimate  things,  the  latent  defects 
which  give  rise  to  the  redhibitory  action,  are  in  general  all  such  as  are 
comprised  in  the  definition  expressed  at  the  commencement  of  this  para- 
graph. 

6  A.  497. 

Art.  2500. — The  latent  defects  of  slaves  and  animals  are  divided 
into  two  classes ;  vices  of  body,  and  vices  of  character. 

7  N.  S.  078. 


335  OF  SALE.  335 

Art.  2501. — The  vices  of  body  are  distinguished  into  absolute  and 
relative. 

Absolute  vices  are  those,  of  which  the  bare  existence  gives  rise  to  the 
redhibitory  action ; 

Relative  vices  are  those,  which  give  rise  to  it,  only  in  proportion  to 
the  degree  in  which  they  disable  the  object  sold. 

2  L.  4C8. 

Art.  2502. — The  absolute  vices  of  slaves  are  leprosy,  madness,  and 
epilepsy. 

19  L.  392 ;  C  A-  2TS. 

Art.  2503. — The  absolute  vices  of  horses  and  mules  are  short  wind, 
glanders  and  founder. 

Art.  2504. — The  other  vices  of  body,  as  well  in  slaves  as  in  animals, 
are  included  in  the  definition  given  at  the  commencement  of  this  para- 
graph. 

Art.  2505. — The  vices  of  character,  which  give  rise  to  the  redhibi 
tion  of  slaves,  are  confined  to  the  cases  iu  which  it  is  proved : 

That  the  slave  has  committed  a  capital  crime; 

6L.  229;  12  L.  212. 

Or,  that  he  is  addicted  to  theft ; 

Or,  that  he  is  iu  the  habit  of  running  away. 

13  L.  202,354;  8  A.  464. 

The  slave  shall  be  considered  as  being  in  the  habit  of  running  away, 
when  he  shall  have  absented  himself  from  his  master's  house  twice  for 
several  days,  or  once  for  more  than  a  month. 

2  L.  251,  408;  6  A.  30;  See  .amcndmont  to  Art.  2508. 

Art.  2506. — The  vices  of  character,  which  give  rise  to  the  redhibi- 
tion of  animals,  are  comprised  iu  the  definition  given  at  the  commence- 
ment of  this  paragraph. 

Art.  2507. — A  declaration  made  in  good  faith  by  the  seller,  that 
the  thing  sold  has  some  quality,  which  it  is  found  not  to  have,  gives  rise 
to  a  redhibition,  if  this  quality  was  the  principal  motive  for  making  the 
pui'chase. 

Art.  2508. — The  buyer  who  institutes  the  redhibitory  action,  must 
prove  that  the  vice  existed  before  the  sale  was  made  to  him.  If  the 
vice  has  made  its  appearance  witliin  tliree  days  immediately  following 
the  sale,  it  is  presumed  to  have  existed  before  the  sale. 

Stat.  1834,  p.  7. — ^  3.  The  buyer  of  a  slave  who  institutes  a  redhi- 
bitory action  on  the  ground  that  such  slave  is  a  runaway  or  thief,  shall 
not  be  bound  to  prove  that  such  vice  existed  before  the  date  of  the  sale, 
whenever  said  vice  shall  have  been  discovered  within  two  months  after 
the  sale,  and  no  renunciation  of  this  provision  shall  be  valid ;  provided, 
however,  that  where  unusual  punishments  have  been  inflicted,  this  legal 
presumption  in  favor  of  the  buyer  shall  cease ;  And  provided  also,  that 
if  any  redhibitory,  bodily  or  mental  maladies  discover  themselves  within 
fifteen  days  after  the  sale,  it  shall  be  presumed  to  have  existed  on 
the  day  thereof,  any  law  to  the  contrary  notwithstanding;  And,  pro- 
vided also,  that  the  provisions  of  this  section  shall  not  apply  to  slaves 
who  have  been  more  than  eight  months  in  this  State. 

I  N.  8.  812;  8  N.  8.  478;  1  L.  810  ;  2  L.  254;  6  L.  441 ;  17  L.  101 ;  5  R.  222;  4  A  51,  96  ;  5  A.  604: 
Sco4A.  186;  5  A.  559. 


336  OF  SALE. 

Art.  2509. — Tlie  seller  wlio  kncsv  not  the  vices  of  the  thing,  is  only 
bound  to  restore  the  price,  and  to  reimburse  the  expenses  occasioned  by 
the  sale,  as  well  as  those  incurred  for  the  preservation  of  the  thing,  un- 
less the  fruits,  which  the  purchaser  has  drawn  from  it,  be  sufficient  to 
satisfy  those  expenses. 

1  N.  S.  312;  1  L.  809  ;  3  L.  82S;  17  L.  101 ;  9  E.  851 ;  1  A.  2T;  2  A.T4S. 

Art.  2510. — If  the  thing  affected  with  the  vices,  has  perished 
through  the  badness  of  its  quality,  the  seller  must  sustain  the  loss. 

IT  L.  100;  IE.  4G. 

Art.  2511. — If  it  has  perished  by  a  fortuitous  event,  before  the 
purchaser  has  instituted  his  redhibitory  action,  the  loss  must  be  borne 
by  him. 

But  if  it  has  perished  even  by  fortuitous  event  since  the  commence- 
ment of  the  suit,  it  is  for  the  seller  to  bear  the  loss. 

Art.  2512. — The  redhibitory  action  must  be  instituted  <vithin  a  year, 
at  the  farthest,  commencing  from  the  date  of  the  sale. 

3N.  S.  2S9:  6N.  S.  129;  6  A.  29. 

This  limitation  does  not  apply  where  the  seller  had  knowledge  of 
the  vice,  and  neglected  to  declare  it  to  the  purchaser. 

lOL.  5T9;  4  E.  155;  9E.  98;  1  A.  405  ;  3  A.  464;  See  8  L.  82S. 

Nor  where  the  seller,  not  being  domiciliated  in  the  State,  shall  have 
absented  himself  before  the  expiration  of  the  year  following  the  sale,  in 
which  case  the  prescription  remains  suspended  during  his  absence. 

12  U.  76 ;  7  L.  581 ;  5  E.  106. 

Art.  2513. — The  redhibition  of  animals  can  only  be  sued  for  with- 
in fifteen  days  immediately  following  the  sale. 

Stat.  1828,  p.  160.—^  22.  All  suits  for  the  redhibitory  defects  of 
animals  may  be  instituted  within  two  months  after  the  date  of  the  sale 
thereof,  any  law  to  the  contrary  notwithstanding. 

Art.  25 1 4. — The  redhibitory  action  may  be  commenced  after  the 
loss  of  the  object  sold,  if  that  loss  was  not  occasioned  by  the  fault  of 
the  purchaser. 

Art.  2515. — Redhibition  does  not  take  place  in  the  cases  of  sales 
made  under  a  seizure  by  order  of  a  court  of  justice. 

3  N.  S.  32,  220,  035 ;  Sec  4  N.  S.  500. 

Art.  2516. — The  redhibitory  action  is  not  divisible  among  the  heirs 
of  the  purchaser,  that  is  to  say,  they  must  all  concur  in  it,  and  no  one  of 
them  can  bring  it  for  his  part  only. 

Art.  2517. — It  may  be  brought  against  the  heirs  of  the  vendor  col- 
lectively, or  against  one  of  them,  at  the  choice  of  the  purchaser. 

Art.  25 1 8. — The  redhibitory  vice  of  one  of  several  things  sold  to- 
gether, gives  rise  to  the  redhibition  of  all,  if  the  things  were  matched, 
as  a  pair  of  horses,  or  a  yoke  of  oxen. 

4  E.  3S1 ;  4  A.  430. 

§  2. — Of  the  Vices  of  the  Thing  sold  tcJiich  occasion  a  Reduction  of  the  Price. 

Art.  2519. — Whether  the  defect  in  the  thing  sold  be  such  as  to  ren- 
der it  useless  and  altogether  unsuited  to  its  purpose,  or  whether  it  be 


337  OF  SALE.  337 

such  as  mei'ely  to  diminish  the  value,  the  bu/er  may  limit  his  demand 
to  the  reduction  of  the  price. 

Art.  2520. — The  buyer  may  also  content  himself  with  resorting  to 
this  action,  when  the  quality  which  the  thing  sold  has  been  declared  to 
possess,  and  which  it  is  found  to  want,  is  not  of  such  importance  as  to 
induce  him  to  demand  a  redhibition. 

Art.  2521. — The  purchaser  who  has  contented  himself  with  de- 
manding a  reduction  of  the  price,  cannot  afterwards  maintain  the  red- 
hibitory action. 

But  in  a  redhibitory  suit,  the  judge  may  decree  merely  a  reduction 
of  the  price. 

Art.  2522. — The  same  action  for  a  reduction  of  price  is  subject  to 
the  same  rules  and  to  the  same  limitations  as  the  redhibitory  action. 

3  E.  810. 


§  3. —  Of  the  Vices  of  the  Tiling  sold.,  wMcli  the  Seller  has  concealed  f^om  the 

Buyer. 

Art.  2523. — The  seller  who  knows  the  vice  of  the  thing  he  sells, 
and  omits  to  declare  it,  besides  the  restitution  of  the  price  and  repay- 
ment of  the  expenses,  is  answerable  to  the  buyer  in  damages. 

1  A.  27, 122  ;  2  A.  6T ;  3  A.  464. 

Art.  2524. — In  this  case,  the  action  for  redhibition  may  be  com- 
menced at  any  time,  provided  a  year  has  not  elapsed  since  the  discovery 
of  the  vice. 

This  discovery  is  not  to  be  presumed ;  it  must  be  proved  by  the  sel- 
ler. 

3  A.  404. 

Art.  2525. — A  declaration  made  by  the  seller,  that  the  thing  sold 
possesses  some  quality  which  he  knows  it  does  not  possess,  comes  within 
the  definition  of  fraud,  and  ought  to  be  judged  according  to  the  rules 
laid  down  on  the  subject,  under  the  title  of  conventional  obligations. 

It  may,  according  to  circumstances,  give  rise  to  the  redhibition,  or 
to  a  reduction  of  the  price,  and  to  damages  in  favor  of  the  buyer. 

13  L.  204 ;  3  A.  464. 

Art.  2526. — The  renunciation  of  warranty,  made  by  the  buyer,  is 
not  obligatory,  where  there  has  been  fraud  on  the  part  of  the  seller. 

18  L.  39. 


CHAPTER  VII. 

OF    THE    OBLIGATIONS    OF    THE    BUYER. 

Art.  2527. — The  obligations  of  the  buyer  are  : 

1.  To  pay  the  price  of  sale  ; 

2.  To  receive  delivery  of  the  thing,  and  to  remove  it,  if  it  be  an  ob- 
ject which  requires  removal ;  and  to  indemnify  the  seller  for  what  he 
has  expended  in  preserving  it  for  him. 

17L.  25;  2  A.  138,  459;  8  A.  699, 
22 


338  <^F  SALE. 

Art.  2528. — The  price  ought  to  be  paid  on  the  day  and  at  the  place 
mentioned  in  the  sale. 

If  no  stipulations  have  been  made  on  that  point,  at  the  time  of  the 
SA-lc,  the  bujcr  must  pay  at  the  time  and  at  the  place  where  the  delivery 
is  to  be  made. 

Art.  2529. — On  foilurc  of  the  buyer  to  pay  the  price,  the  seller 
may  compel  him  to  do  it,  by  offering  to  deliver  the  thing  to  him,  .if  that 
has  not  been  already  done. 

Art.  2530. — If,  after  the  contract,  and  before  the  seller  has  been 
required  to  deliver  the  thing,  it  ceases  to  be  susceptible  of  delivery, 
without  his  fault,  the  buyer  is  still  bound  to  pay  him  the  price. 

Art.  2531. — The  buyer  owes  interest  on  the  price  of  the  sale,  un- 
til the  payment  of  the  capital,  in  the  three  following  cases  : 

1.  If  it  has  been  so  agreed  at  the  tirue  of  the  sale; 

2.  If  the  thing  sold  produces  fruits,  or  any  other  income  ; 

3.  If  he  has  been  sued  for  the  payment. 

In  this  last  case  the  interest  runs  only  from  the  day  on  which  the 
suit  was  instituted. 

19  L.  152 ;  12  E.  303 ;  2  A.  462,  651. 

Art.  2532. — When  the  seller  has  granted  to  the  buyer  a  term  for 
the  payment,  the  interest  begins  to  run  from  the  end  of  that  term. 

Art.  2533. — The  purchaser  who  neglects  to  obtain  delivery  of  the 
thing  sold,  after  having  been  put  in  default,  is  answerable  to  the  vendor 
for  the  damage  he  may  sustain  on  that  account,  and  for  the  reimburse- 
ment of  the  expenses  which  he  may  have  incurred  for  the  preservation 
of  the  thing. 

Art.  25 3 '1. — The  seller  may  even  obtain  authority,  where  movables 
or  slaves  have  been  sold,  and  the  custody  of  them  is  inconvenient  to 
him,  for  putting  them  out  of  his  house  at  the  risk  of  the  purchaser,  on 
giving  him  notice  of  the  day  and  hour  at  which  he  will  put  them  out. 

Art.  2535. — If  the  buyer  is  disquieted  in  his  possession,  or  has 
just  reason  to  fear  that  he  shall  be  disquieted,  by  an  action  of  mortgage 
or  by  any  other  claim,  he  may  suspend  the  payment  of  the  price,  until 
the  seller  has  restored  him  to  quiet  possession,  unless  the  seller  has  re- 
stored him  to  quiet  possession,  unless  the  seller  prefer  to  give  security. 

There  is  an  exception  to  this  rule,  when  the  buyer  has  been  informed, 
before  the  sale,  of  the  danger  of  the  eviction. 

12  M.  432 ;  8  N.  S.  329 ;  8  L.  97;  5  L.  19;  13  L.  4TT;  IT  L.  26.  193;  19  L.  152,  1G8.  28S;  7  E.  22 

2  A.  384  ;  5  A.  166,  6S3,  741 ;  6  A.  117;  Soo  6  L.  4S5;  14  L.  467;  15  L.  147 ;  16  L.  601 ;  IS  L.  50 ; 

19L.  255;  6  E.  324;  5  A.  365. 

Art.  2536. — In  the  case  mentioned  in  the  preceding  article,  the  sell- 
er who  cannot  receive  the  price,  from  being  unable  to  give  security,  may 
compel  the  buyer  to  deposit  the  price,  subject  to  the  order  of  the  court, 
to  await  the  decision  of  the  suit. 

3  L.  97;  See  2535. 

Art.  2537. — The  purchaser  may  also  require  the  deposit,  to  relieve 
himself  from  the  payment  of  interest. 

13  L.  88S ;  19  L.  31, 147 ;  7  E.  175 ;  9  E.  424. 

Art.  2538. — If  the  purchaser  has  paid  before  disturbance  of  his 
possession,  he  can  neither  demand  a  restitution  of  the  price,  nor  secu- 
rity during  the  suit. 

2  A.  143,  469 ;  8  A.  099 ;  See  2  L.  140,  242 ;  17  L.  216. 


839  OF  SALE.  339 

Art.  2539. — If  the  buyer  does  not  pay  the  price,  the  seller  may  sue 
for  the  dissolution  of  the  sale. 

irL.  311;  1  A.  420;  6  A.  3. 

Art.  2540. — The  dissolut!')n  of  the  sale  of  immovables  is  summa- 
rily awarded,  when  there  is  danger  that  the  seller  may  lose  the  price  and 
the  thing  itself 

If  that  danger  does  not  exist,  the  judge  may  grant  to  the  buyer  a 
longer  or  shorter  time,  according  to  circumstances,  provided  such  term 
exceed  not  six  months. 

This  term  bemg  expired  without  the  buyer's  yet  having  paid,  the 
judge  shall  cancel  the  sale. 

See  2  L.  401 ;  17  L.  311. 

Art.  2541. — If,  at  the  time  of  the  sale  of  immovables,  it  has  been 
stipulated  tliat,  for  want  of  payment  of  the  price  within  the  term  agreed 
on,  the  sale  should  be  of  riglit  dissolved,  the  buyer  may  nevertheless 
make  payment  after  the  expiration  of  the  term,  as  long  as  he  has  not 
been  placed  in  a  state  of  default,  by  a  judiciary  demand,  but  after  that 
demand,  the  judge  can  grant  him  no  delay. 

Art.  2542. — In  matters  of  sale  of  slaves  or  movable  effects,  the 
dissolution  of  the  sale  shall  take  place  of  right,  if  demanded,  without 
its  being  in  the  power  of  the  judge  to  grant  any  delay,  except  that  fixed 
by  law. 

19  L.  31. 

Art.  2543. — If,  on  account  of  delay  in  the  payment  of  the  price, 
the  seller  is  obliged  to  retain,  or  to  resume  the  thing  sold,  and  its  value 
is  diminished,  the  buyer  is  bound  to  make  good  this  diminution  to  the 
amount  of  the  price  which  had  been  agreed  upon. 

16  L.  467, 470. 


CHAPTER  VIII. 

OF    THE    NULLITY    AND    RESCISSION    OF    THE  SALE. 

Art.  2544. — Besides  the  causes  of  nullity  or  dissolution  of  the  sale 
already  mentioned  in  this  title,  and  those  which  are  common  to  all 
agreements,  the  contract  of  sale  may  be  cancelled  by  the  use  of  the 
power  of  redemption,  and  by  the  effect  of  the  lesion  beyond  moiety. 

Section  I. —  Of  the  Tower  or  Right  of  Redemption. 

Art.  2545. — The  right  of  redemption  is  an  agreement  or  paction,  by 
which  the  vendor  reserves  to  himself  the  power  of  taking  back  the  thing 
sold  by  returning  the  price  paid  for  it. 

Art.  2546. — The  right  of  redemption  cannot  be  reserved  for  a  time 
exceeding  ten  years. 

If  a  term  exceeding  that  has  been  stipulated  in  the  agreement,  it 
shall  be  reduced  to  the  term  of  ten  years. 

Art.  2547. — The  time  fixed  for  the  redemption  must  be  rigorously 
adhered  to  ;  it  cannot  be  prolonged  by  the  judge. 

Art.  2548. — If  that  right  has  not  been  exercised  within  the  time 


340  OF  SALE. 

agreed  on  by  the  vendor,  he  cannot  exercise  it  afterwards,  and  the  pur- 
chaser becomes  irrevocably  possessed  of  the  thing  sold. 

Art.  2549. — The  delay  runs  against  any  person,  not  excepting  mi- 
nors, -who  cannot  be  relieved  against  it. 

Art.  2550. — A  person  having  sold  a  tiling  with  the  power  of  re 
demption,  may  exercise  the  right  against  a  second  purchaser,  even  in  case 
such  right  should  not  have  been  mentioned  in  the  second  sale. 

Art.  2551. — The  person  having  purchased  an  estate  under  a  condi- 
tion of  redemption,  is  entitled  to  all  tlie  rights  possessed  by  the  vendor ; 
he  may  prescribe  against  the  true  proprietor,  as  well  as  against  those 
having  claims  or  mortgages  on  the  thing  sold. 

Art.  2552. — He  may  oppose  the  plea  of  discussion  to  the  creditors 
of  his  vendor. 

Art.  2553. — The  fruits  are  his,  until  the  vendor  exercises  his  right 
of  redemption. 

Art.  2554. — He  becomes  absolute  owner  of  the  natural  augmenta- 
tions, which  the  thing  receives  by  accession,  and  is  not  bound  to  restore 
them. 

But  if  these  augmentations  are  of  such  a  nature  that  they  cannot  be 
separated  from  the  thing  sold  without  injury  to  it,  the  person  exercising 
the  right  of  redemption,  may  insist  that  they  shall  be  yielded  to  him  for 
a  fair  price. 

Art.  2555. — With  regard  to  the  augmentations  which  the  purchaser, 
with  benefit  of  redemption,  may  have  produced  at  his  own  expense,  he 
has  a  right  to  an  indemnity  for  them,  as  is  hereafter  stated,  or  to  take 
them  away,  if  the  removal  can  be  effected  in  such  a  way,  that  the  thing 
sold  shall  be  placed  in  its  original  condition. 

Art.  2556. — The  thing  sold  shall  be  restored  to  the  seller  who  exer- 
cises the  right  of  redemption,  in  the  state  in  which  it  is  at  the  moment. 
If  it  has  been  deteriorated  without  the  fault  of  the  buyer,  the  loss  must 
be  borne  by  the  seller,  nor  can  he,  in  this  case,  claim  any  reduction  of 
the  price  to  be  reimbursed.  If  it  has  been  deteriorated  by  the  fault  or 
negligence  of  the  buyer,  though  this  be  but  slight,  he  must  make  good 
the  loss  to  the  seller. 

Art.  2557. — If  the  purchaser  of  an  undivided  portion  of  an  inherit- 
ance, sold  with  the  power  of  redemption,  has  become  the  purchaser  of 
the  whole,  on  a  cant  or  auction  pursued  against  him,  ho  may  oblige  the 
vendor  to  redeem  the  whole,  if  the  latter  wishes  to  avail  himself  of  tlie 
redemption. 

Art.  2558. — If  several  persons  have  jointly  sold  by  a  single  contract 
a  joint  inheritance,  each  one  of  them  can  individually  exercise  the  right 
of  redemption  for  that  share  only  which  belonged  to  him. 

Art.  2559. — The  same  principle  governs,  when  a  person  having  sold 
an  inheritance,  leaves  several  co-heirs ;  each  of  these  co-heirs  can  only 
exercise  the  right  of  redemption  for  the  portion  of  the  estate  which  falls 
to  his  share. 

Art.  2560. — But  in  the  case  provided  for  in  the  two  preceding  ar- 
ticles, the  purchaser  may  require,  if  he  deem  it  proper,  that  all  the  co- 
vendors  and  co-heirs  may  be  made  parties  to  the  suit,  for  the  purpose 
that  they  may  agree  together  on  the  redemption  of  the  whole  estate; 
and  in  case  the  co-vendors  or  co-heirs  should  not  agree,  the  purchasei 
shall  be  hence  dismissed. 


341  OF  SALE.  34. 

Art.  2561. — If  an  estate,  belonging  to  several  persDns,  has  not  boen 
sold  by  them  jointly,  and  if  each  co-partner  has  only  sold  individually 
his  share  on  that  estate,  they  may  separately  exercise  the  right  of  re- 
demption on  the  respective  portions  which  belonged  to  each  of  them  , 
and  in  that  case  the  purchaser  cannot  compel  him,  who  thus  exercisea 
the  right  of  redemption,  to  redeem  the  whole  estate. 

Art.  2562. — If  the  purchaser  has  left  several  heirs,  the  right  of  re- 
demption can  only  be  exercised  against  them  individually,  for  the  jior- 
tion  belonging  to  each  of  them  respectively,  whether  the  estate  has 
already  been  divided  between  them  or  not.  But  if  a  partition  has  al- 
ready taken  place,  by  Avhich  the  thing  subject  to  redemption  has  fallen 
to  the  share  of  only  one  of  the  co-heirs,  the  action  of  redemption  may 
be  brought  against  this  heir  for  the  whole  estate. 

Art.  2563. — The  creditors  of  the  vendor  cannot  make  use  of  the 
right  of  redemption,  which  such  vendor  may  have  reserved  to  himself 

Art.  2564. — When  a  vendor  exercises  the  right  of  redemption,  he 
becomes  entitled  to  all  the  fruits  not  yet  gathered,  from  the  day  in  which 
he  has  either  reimbursed  or  consigned  the  money  paid  by  the  purchaser, 
unless  the  contrary  has  been  stipulated. 

14  L.  235. 

Art.  2565. — The  vendor,  who  exercises  the  right  of  redemption,  is 
bound  to  reimburse  to  the  purchaser,  not  only  the  purchase  money,  but 
also  the  expenses  resulting  from  necessary  repairs,  those  which  have  at- 
tended the  sale,  and  the  price  of  the  improvements  which  have  increased 
the  value  of  the  estate,  up  to  that  increased  value. 

Art.  2566. — When  a  vendor  recovers  the  possession  of  his  inlierit- 
ance  by  virtue  of  the  power  of  redemption,  he  recovers  it  free  from  any 
mortgages  or  incumbrances  created  by  the  purchaser,  provided  such  pos- 
session be  recovered  within  the  ten  years  as  provided  by  article  2546. 
If,  after  the  expiration  of  these  ten  years,  the  vendor  recover  his  estate 
with  the  consent  of  the  purchaser,  the  estate  remains  liable  for  every 
mortgage  and  incumbrance  laid  upon  it  by  the  purchaser. 

Section  II. — Of  the  Rescission  of  Sales  on  account  of  Lesion. 

Art.  2567. — If  the  vendor  lias  been  aggrieved  for  more  thaii  half 
the  value  of  an  immovable  estate  by  him  sold,  he  has  the  right  to  demand 
the  rescission  of  the  sale,  even  in  case  he  had  expressly  abandoned  the 
right  of  claiming  such  rescission,  and  declared  that  he  gave  to  the  pur- 
chaser the  surplus  of  the  thing's  value. 

See  5  L.  3S2. 

Art.  2568. — To  ascertain  whether  there  is  lesion  in  more  than  one 
half,  the  immovable  must  be  estimated,  according  to  the  state  in  which 
it  was,  and  tlie  value  which  it  had,  at  the  time  of  the  sale. 

Art.  2569. — If  it  should  appear  that  the  immovable  estate  has  been 
sold  for  less  than  one-half  of  its  just  value,  the  purchaser  may  eithei 
restore  the  thing  and  take  back  the  price  which  he  has  paid,  or  make  up 
the  just  price  and  keep  the  thing. 

Art.  2570. — Should  the  purchaser  prefer  to  keep  the  thing  by  mak- 
ing up  the  just  price,  he  must  pay  the  interest  of  the  additional  price 
from  the  day  when  the  rescission  was  demanded.  If  he  chooses  ratlicr 
to  restore  the  thing  and  to  receive  the  purchase  money,  he  shall  bo  lir. 


342  OF  SALE. 

"ble  to  restore  the  fruits  of  the  estate  from  the  day  of  the  demand,  but 
the  mterest  of  his  money  shall  also  be  paid  to  him  from  the  same  time 

6  L.  702. 

Art.  2571. — The  rescission  for  having  been  aggrieved  for  more  than 
half  the  value  of  a  thing,  cannot  take  place  in  favor  of  the  purchaser. 

Art.  2572. — Rescission  for  lesion  beyond  moiety  is  not  granted 
against  sales  of  movables,  slaves  and  produce,  nor  when  rights  to  a  suc- 
cession have  been  sold  to  a  stranger,  nor  in  matter  of  transfer  of  credits, 
nor  against  sales  of  real  property  made  by  virtue  of  any  decree  or  pro- 
cess of  a  court  of  justice. 

Art.  2573. — Actions  for  rescission  of  sales  on  account  of  lesion  be- 
yond moiety  must  be  commenced  within  four  years.  These  four  years, 
with  respect  to  minors,  begin  onl}^  from  the  day  they  become  of  age. 
With  respect  to  persons  of  full  age,  they  begin  from  the  day  of  the 
sale. 

Art.  2574. — This  delay  runs  with  and  is  not  suspended  by  that 
granted  for  redemption. 

Art.  2575. — The  seller  who  demands  the  rescission  on  account  of 
lesion  beyond  the  moiety,  must  resume  the  possession  of  the  thing,  in 
the  state  in  which  it  is. 

The  buyer,  in  this  case,  is  not  bound  for  the  injury  sustained  through 
his  fault  before  the  demand.  He  is  only  bound  to  make  reimbursement 
for  such  injuries  as  he  has  turned  to  his  own  profit. 

Art.  2576. — The  buyer  is  entitled  to  repayment  for  ameliorations 
which  he  has  effected,  although  they  be  merely  for  pleasure  and  conve- 
nience. 

Art.  2577. — He  may  remain  in  possession  of  the  thing  sold,  until 
the  seller  has  restored  the  price  which  he  paid,  together  with  his  ex- 
penses. 

Art.  2578. — The  provisions,  contained  in  the  preceding  section, 
relative  to  the  case  where  several  co-partners  have  sold  a  thing,  either 
jointly  or  separately,  and  to  that  where  the  vendor  has  left  several 
heirs,  must  likewise  be  applied  to  the  exercise  of  the  action  of  rescis- 
sion. 

6  L.  762. 


CHAPTER  IX. 

OF    SALES    RY    auction    OR    TUELIC    SALES. 

Art.  2579. — The  sale  by  auction  is  that  which  takes  place  when  the 
thing  is  offered  publicly  to  be  sold  to  whoever  will  give  the  highest 
price. 

Art.  2580. — This  sale  is  either  voluntary  or  forced  :  voluntary, 
when  the  owner  himself  offers  his  property  for  sale  in  this  manner ; 
forced,  when  the  law  prescribes  this  mode  of  sale  for  certain  property, 
such  as  that  of  minors. 

Art.  2581. — The  sale  by  auction,  as  it  is  made  by  officers  of  justice, 
is  treated  of  separately,  under  the  title  of  judicial  sale. 


343  OF  SALE.  343 

Art.  2582. — The  sale  by  auction,  whether  made  at  the  will  of  the 
seller,  or  by  direction  of  the  law,  is  subjected  to  the  rules  hereafter 
mentioned. 

Akt.  2583. — It  cannot  be  made  directly  by  the  seller  himself,  but 
must  be  made  through  the  ministry  of  a  public  officer,  appointed  for 
that  purpose. 

Art.  2584. — This  officer,  after  having  received  in  writing,  from  the 
seller,  the  conditions  of  the  sale,  must  proclaim  them,  in  a  loud  and  au- 
dible voice,  and  afterwards  propose  that  a  bid  shall  be  made  for  the 
property  thus  oiTercd. 

3  L.  460 ;  13  L.  2S7  ;  See  1S41,  2255,  2256. 

Art.  2585. — When  the  highest  price  offered  has  been  cried  long 
enough  to  make  it  probable  that  no  higher  will  be  offered,  he  who  has 
made  the  offer,  is  publicly  declared  to  be  the  purchaser,  and  the  thing 
sold  is  adjudicated  to  him. 

2  L.  498:  5  L.  800;  11  L.  2&5;  13  L.  290;  15  L.  SS5;  19  L.  285,  237;  9  R.  405,  414;  11  R.  2T0;  1  A. 

440. 

Art.  258G. — This  adjudication  is  the  completion  of  the  sale ;  the 
purchaser  becomes  the  owner  of  the  object  adjudged,  and  the  contract 
is,  from  that  time,  subjected  to  the  same  rules  which  govern  the  ordi- 
nary contract  of  sale. 

Art.  2587. — If  the  adjudication  be  made  on  condition  that  the  price 
shall  be  paid  in  cash,  the  auctioneer  may  require  the  price  immediately, 
before  delivering  possession  of  the  thing  sold. 

Art.  2588. — If  the  object  adjudged  is  an  immovable  or  a  slave,  for 
which  the  law  requires  that  the  act  of  sale  shall  be  passed  in  writing, 
the  purchaser  may  retain  the  price,  and  the  seller  the  possession  of  the 
thing,  until  the  act  be  passed. 

This  act  ought  to  be  passed  within  twenty-four  hours  after  the  ad- 
judication, if  one  of  the  parties  require  it :  he  who  occasions  a  further 
delay,  is  responsible  to  the  other  in  damages. 

4  L.  392;  6L.  154;  8  R.  857. 

Art.  2589. — In  all  cases  of  sale  by  auction,  whether  of  movables, 
or  of  slaves  or  immovables,  if  the  person  to  whom  adjudication  is  made, 
does  not  pay  the  price  at  the  time  required,  agreeably  to  the  two  preced- 
ing articles,  the  seller  at  the  end  of  ten  days,  and  after  the  customary 
notices,  may  again  expose  to  public  sale  the  thing  sold,  as  if  the  first 
adjudication  had  never  been  made  ;  and  if  at  the  second  crying,  the 
thing  is  adjudged  for  a  smaller  price  than  that  which  had  been  offered 
by  the  person  to  whom  tlic  first  adjudication  was  made,  the  latter  re- 
mains a  debtor  to  the  vendor,  for  the  deficiency,  and  for  all  the  expenses 
incurred  subsequent  to  the  first  sale.  But  if  a  higher  price  is  offered 
for  the  thing,  than  that  for  which  it  was  first  adjudged,  the  first  pur- 
chaser has  no  claim  for  the  txcess. 

6  N.  S.  229 ;  2  L.  401 ;  4  L.  892 ;  C  L.  151 ;  7  L.  508 ;  14  L.  114,  559 ;  15  L.  391,  394. 

Art.  2590. — At  this  second  crying,  the  first  purchaser  cannot  bo 
allowed  to  bid,  either  directly  or  through  the  intervention  of  another 
person. 

4  L.  892 ;  19  L.  21 ;  4  A.  242. 


344  OF  SALE. 

Akt.  2591. — "Wlien  a  tiling  is  exposed  to  public  sale,  with  notice 
that  the  buyer  shall  give  indorsed  notes  for  the  price,  he  is  bound,  im- 
mediately after  the  sale,  if  required,  to  acquaint  the  auctioneer  or  the 
seller  with  the  name  of  the  person  whom  he  offers  for  indorser,  and  if 
this  indorser  does  not  suit  the  seller,  or,  in  his  absence,  the  auctioneer, 
the  adjudication  is  considered  as  not  having  been  made. 

Art.  2592. — The  refusal  by  the  seller  to  receive  the  indorser  whom 
the  purchaser  offers,  renders  him  responsible  in  damages  to  the  latter 
if  it  be  proved  that  the  indorser  proposed  is  good  and  solvent. 

Art.  2593. — The  adjudication  can  only  be  made  to  a  bidder  present, 
or  properly  represented.  The  person  who  bids  in  the  name  of  another, 
without  sufficient  authority  to  bind  him,  is  considered  as  having  bought 
on  his  own  account,  and  is  answerable  for  all  the  consequences  of  the 
adjudication. 

CHAPTER   X. 

OF    JUDICIAL    SALES. 

Art.  2594. — Sales  which  are  made  by  authority  of  law,  are  of  two 
kinds : 

1.  Those  which  take  place  when  the  property  of  a  debtor  has  been 
seized  by  order  of  a  court,  to  be  sold  for  the  purpose  of  paying  the 
creditor ; 

2.  Those  which  are  ordered  in  matters  of  succession  or  partition. 
Art.  2595. — Judicial  sales  are  subject  to  the  rules  laid  down  above 

for  public  sales  in  general,  in  all  such  things  as  are  not  contrary  to  the 
formalities  expressly  prescribed  for  such  sales,  and  with  the  modifica- 
tions contained  hereafter. 

1  A.  440. 


Section  I. —  Of  Sales  on  Seizure  or  Execution. 

Art.  2596. — The  sale  on  seizure  is  made  at  public  auction  by  the 
sheriff  or  other  oihcer  charged  with  the  execution  of  the  judgment. 

Art.  2597. — Whatever  may  be  the  vices  of  the  thing  sold  on  execu- 
tion, they  do  not  give  rise  to  the  redhibitory  action ;  but  the  sale  may 
be  set  aside  in  the  case  of  fraud,  and  declared  null  in  cases  of  nullity. 

8  A.  326. 

Art.  2598. — The  sale  on  execution  transfers  the  property  of  the 
thing  to  the  purchaser  as  completely  as  if  the  owner  had  sold  it  him- 
self ;  but  it  transfers  only  the  rights  of  the  debtor,  such  as  they  are. 

3  A.  320. 

Art.  2599. — The  purchaser  evicted  from  property  purchased  under 
execution,  shall  have  his  recourse  for  reimbursement  against  the  debtor 
and  creditor  ;  but,  upon  the  judgment  obtained  jointly  for  that  purpose, 
the  purchaser  shall  first  take  execution  against  the  debtor,  and  upon  the 


345  OF  SALE.  345 

return  of  sucli  execution  no  property  found,  then  be  sliall  be  at  liberty 
to  take  out  execution  against  the  creditor. 

lOE.  65;  8A,326. 

Section  ll. — Of  the  Judicial  Sale  of  the  Property  of  Successions. 

Art.  2G00. — The  judicial  sale  of  succession  property  is  made  by 
the  judge  or  clerk  of  the  court  to  which  this  jurisdiction  is  specially  con- 
fided. 

Stat.  1th  April .1  1847,  p.  73. — It  shall  be  the  duty  of  the  judge  of 
the  court  in  which  a  succession  is  opened,  to  order  the  sale  of  all  prop- 
erty belonging  to  the  succession  to  be  made  by  either  the  sheriff  of  the 
parish,  or  by  such  auctioneer  or  auctioneers  as  may  be  appointed  or 
named  by  the  person  administering  said  succession. 

Art.  2601. — The  adjudication  made  and  recorded  by  the  judge  or 
clei-k  of  the  court,  is  a  complete  title  to  the  purchaser,  and  needs  not  be 
followed  by  an  act  passed  before  a  notary. 

2  L.  498 ;  9  L.  ISO;  1  A.  200 ;  3  A.  150. 

Art.  2602. — All  the  warranties  to  which  private  sales  are  subject, 
exist  against  the  heir  in  judicial  sales  of  the  property  of  successions. 

•  Sec  2515. 

Art.  2603. — Heirs  may  jjurchase  the  property  of  the  succession  to 
the  amount  of  their  proportion,  and  arc  not  obliged  to  pay  the  purchase 
money,  until  a  liquidation  ie  had,  by  which  it  is  ascertained  what  balance 
there  is  in  their  favor  or  against  them. 

12  K.  666. 


CHAPTER  XL 

OF  THE  COMPULSORY  TRANSFER  OF  FROPERTY. 

Art.  2604. — The  first  law  of  society  being  that  the  general  interest 
shall  be  preferred  to  that  of  individuals,  every  individual,  who  possesses, 
under  the  protection  of  the  laws,  any  particular  property,  is  tacitly  sub- 
jected to  the  obligation  of  yielding  it  to  the  community,  whenever  it 
becomes  necessary  for  the  general  use. 

11  L.  S6;  12  K.  552. 

Art.  2605. — If  the  proprietor  of  a  thing  necessary  for  the  general 
use,  refuses  to  yield  it,  or  demands  an  exorbitant  price,  he  may  be  di- 
vested of  the  property  by  the  authority  of  law. 

Art.  2606. — In  all  cases,  a  fair  price  should  be  given  to  the  owner 
for  the  thing  of  which  he  is  dispossessed. 

Art.  2607. — This  price  ought  to  be  paid  to  him  before  the  expro- 
priation, that  is  to  say,  before  he  has  delivered  the  possession,  or  it  has 
been  finally  taken  from  him,  in  case  of  resistance. 

Art.  2608. — For  the  purpose  of  ascertaining  tliis  fair  price,  the 
judge,  within  whose  jurisdiction  the  property  to  be  taken  for  the  com- 
mon use  is  situated,  shall  cause  to  be  convoked,  within  eight  days  by 
the  sheriff,  a  jury  of  twelve  freeholders,  who,  after  having  been   duly 


346  OF  SALE. 

sworn,  shall  declare  what  sum  the  property  is  worth,  regard  being  had 
not  only  to  the  general  value  of  property  of  the  same  nature  and  quality 
but  to  the  particular  value  which  it  may  possess  in  relation  to  the  rest 
of  the  estate  from  which  it  is  to  be  dismembered,  and  to  the  injury 
which  this  dismemberment  may  cause  to  the  owner. 

Art.  2609. — The  owner  shall  be  summoned  at  the  same  time,  to  ap- 
pear before  this  jury,  to  defend  his  rights,  and  he  may  challenge  for 
cause  any  of  the  members  in  the  same  manner  as  he  might  challenge 
ordinary  jurors. 

Art.  2610. — The  verdict  of  the  jury,  and  the  judgment  which  shall 
be  founded  on  it,  are  conclusive,  except  on  appeal. 

Art.  26 11. — If,  after  the  expropriation,  any  individual  j^retends  that 
he  had  rights  respecting  the  thing,  either  as  owner  or  as  creditor,  he 
shall  have  recourse  against  the  person  who  received  the  price. 


CHAPTER  XII. 

OF    THE    ASSIGNMENT    OR    TRANSFER    OF    DEBTS    AND    OTHER    INCORPOREAL 

EIGHTS. 

Art.  2612. — In  the  transfer  of  debts,  rights  or  claims  to  a  third 
person,  the  delivery  takes  place  between  the  transferror  and  the  ti-ans- 
ferree  by  the  giving  of  the  title. 

2  1*4-32;  1-2  L.  91;  11  L.  13;  1  E.  26;  11  It.  298;  4A.  45S;  See  8  L.  586;  3K.  432;  lOE.  25; 

See  2107,  2149,  2624. 

Art.  2613. — The  transferree  is  only  possessed,  as  it  regards  third 
persons,  after  notice  has  been  given  to  the  debtor  of  the  transfer  having 
taken  place. 

The  transferree  may  nevertheless  become  possessed  by  the  accept- 
ance of  the  transfer  by  the  debtor  in  an  authentic  act. 

6  N.  8.  2S8,  832 ;  4N.  S.  56;  5  N.  S.  21;  2  L.  422,425:  8.  L.  536;  14  L.  13;  IE.  26;  HE.  293;  8  A. 
220,  222 ;  See  IT  L.  471 ;  S  E.  250 ;  9  E.  207 ;  12  E.  8,  409 ;  4  A.  356. 

Art.  2614. — If,  previous  to  notice  having  been  given  of  the  transfer 
to  the  debtor,  either  by  the  transferror  or  by  the  transferree,  the  debtor 
should  have  made  payment  to  the  transferror,  the  debtor  is  discharged 
of  the  debt. 

3  A.  220;  See  12E.  S. 

Art.  2615. — The  sale  of  transfer  of  a  debt  includes  every  thing  which 
is  an  accessory  to  the  same  as  suretyship,  privileges  and  mortgages. 

4  A.  65. 

"Art.  2616. — He  who  sells  a  debt  or  an  incorporeal  right,  warrants 
its  existence  at  the  time  of  the  transfer,  though  no  warranty  be  mention- 
ed in  the  deed. 

14  L.  428 ;  2  A.  880. 

Art.  2fi  1 7. — The  seller  does  not  warrant  the  solvency  of  the  debtor, 
unless  he  has  agreed  so  to  do. 

14  L.  423;  3  A.  716. 

Art.  2618. — When  the  solvency  of  a  debtor  is  warranted  by  con- 
tract, such  warrant  extends  only  to  the  actual  solvency  of  the  debtoK, 
and  not  to  his  future  solvency,  unless  the  same  be  expressly  submitted 
to  by  the  transferror. 


347  OF  SALE.  '  347 

Art.  2619. — If  it  be  proved  that  the  assignor,  who  has  not  warrant- 
ed the  solvency  of  the  debtor,  knew  or  had  strong  reasons  to  suspect 
that  the  debtor  was  insolvent  at  the  time  of  the  assignment,  the  contract 
may  be  rescinded,  and  the  assignor  compelled  to  restore  the  price. 

3  A.  71G. 

Art.  2G20. — When  a  man  sells  his  right  to  a  succession,  without 
particularly  specifying  the  objects  of  which  it  consists,  he  only  warrants 
his  right  as  an  heir. 

Art.  2621. — In  case  he  who  sells  his  right  to  a  succession  has  al- 
ready received  any  of  the  fruits  of  any  property  belonging  to  the  same, 
and  if  any  debt  due  to  that  succession  has  been  paid  to  him,  he  shall  be 
bound  to  repay  the  same  to  the  purchaser,  unless  the  same  has  been  ex- 
cepted by  the  contract. 

Art.  2622. — He  against  whom  a  litigious  right  lias  been  transferred, 
may  get  himself  released  by  paying  to  the  trausferrcc  the  real  price  of 
the  transfer,  together  with  the  interest  from  its  date. 

12  L.  205;  6  R.  UO;  11  R.  124;  0  A.  79,  G15;  3  A.  G'JG;  4  A.  104  ;  6  A.  '23T. 

Art.  2623. — A  right  is  said  to  be  litigious,  whenever  there  exists  a 
suit  and  contestation  on  the  same. 

12  L.  123;  2  A.  487:  8  A.  552,  62G ;  G  A.  232. 

Art.  2624. — The  provisions  of  article  2622  do  not  apply : 

1.  When  the  transfer  has  been  made  either  to  a  co-heir  or  to  the 
co-proprietor  of  the  right ; 

2.  When  such  right  has  been  transferred  to  a  creditor  as  a  payment 
for  a  debt  due  to  him ; 

12  L.  205;  Sco  2  A.  611 ;  Sco  2C12. 

3.  When  the  transfer  has  been  made  to  the  possessor  of  the  inherit- 
ance subject  to  the  litigious  right. 

CHAPTER  XIII. 

OF  THE  GIVING  IN  TAYMKNT. 

Art.  2625. — The  giving  in  payment  is  an  act  by  which  a  debtor  gives 
a  thing  to  the  creditor,  who  is  willing  to  receive  it,  in  payment  of  a  sum 
which  is  due. 

Art.  2626. — The  giving  in  payment  differs  from  the  ordinary  con- 
tract of  sale  in  this,  that  the  latter  is  perfect  by  the  mere  consent  of  the 
parties,  even  before  the  delivery,  while  the  giving  in  payment  is  made- 
only  by  delivery. 

Art.  2627. — From  tliis  distinction  result  consequences  which  are 
different  in  relation  to  the  risk  of  the  thing  sold,  which,  in  this  species 
of  contract,  never  falls  upon  the  creditor,  before  delivery,  unless  he  has 
delayed  beyond  a  reasonable  time  to  obtain  it. 

Art.  2628. — This  difference  gives  rise  to  anotlicr  in  the  effect  of  these 
contracts,  in  cases  of  the  insolvency  of  the  debtor.  He  may,  although 
insolvent,  lawfully  sell  for  the  price  which  is  paid  to  him,  but  the  law 
forbids  to  give  in  payment  to  one  creditor,  to  the  prejudice  of  the  others, 
any  other  thing  than  the  sum  of  money  due. 

Art.  2629. — Except  with  these  differences,  the  giving  in  payment  is 
Bubjected  to  all  the  rules  which  govern  the  ordinary  contract  of  sale. 

1  A.  816. 


348  OF  EXCHANGE. 

TITLE   YIII. 

OF  EXCHANGR 

Art.  2G30. — An  exchange  is  a  contract,  by  which  the  contractors 
give  to  one  another,  one  thing  for  another,  whatever  it  be,  except  money, 
for  in  that  case  it  would  be  a  sale. 

Art.  2631. — An  exchange  takes  place  by  the  bare  consent  of  the 
parties. 

Art.  2632. — If  one  of  the  exchangers,  after  having  received  the 
thing  given  to  him  in  exchange,  learn  that  the  other  exchanger  is  not 
the  proprietor  of  that  thing,  he  cannot  be  compelled  to  deliver  that  which 
he  had  promised  to  give  in  exchange ;  he  is  only  bound  to  return  the 
thing  which  he  has  received. 

Art.  2633. — The  exchanger,  who  is  evicted  by  a  judgment  of  the 
thing  he  has  received  in  exchange,  has  his  choice  either  to  sue  for  dam- 
ages or  for  the  thing  he  gave  in  exchange. 

•  4  A.  219. 

Art.  2634. — The  rescission  of  contract  on  account  of  lesion  is  not 
allowed  in  contracts  of  exchange,  except  in  the  following  cases. 

Art.  2635. — The  rescission  on  account  of  lesion  •  beyond  moiety, 
takes  place,  when  one  party  gives  immovable  property  to  the  other  in 
exchange  for  movable  property ;  in  that  case,  the  person  having  given 
the  immovable  estate  may  obtain  a  rescission,  if  the  movables  which  he 
has  received  are  not  worth  more  than  the  one-half  of  the  value  of  the 
real  estate. 

But  he  who  has  given  movable  property  in  exchange  for  innnovable 
estate,  cannot  obtain  a  rescission  of  the  contract,  even  in  case  the  things 
given  by  him  were  worth  twice  as  much  as  the  immovable  estate. 

Art.  2636. — The  rescission  on  account  of  lesion  beyond  moiety,  may 
take  place  on  a  contract  of  exchange,  if  a  balance  has  been  paid  in  money 
or  in  movable  property,  and  if  the  balance  paid  exceeds  by  one  moiety 
.the  total  value  of  the  immovable  property  given  in  exchange  by  the  per- 
son to  whom  the  balance  has  been  paid ;  in  that  case  it  is  only  the  per- 
son who  has  paid  such  balance  who  may  demand  the  rescission  of  the 
contract  on  account  of  lesion. 

Art.  2637. — All  the  other  provisions  relative  to  the  contract  of  sale 
apply  to  the  contract  of  exchange. 

And  in  this  contract  each  of  the  parties  is  individually  considered 
in  the  double  character  of  vendor  and  vendee. 

8  A.  716;  4  A.  219. 


349  OF  LETTING  AND  HIRING.  34S 


TITLE  IX. 


OF  LETTING  AND  HIRING. 


Art.  2638. — The  contract  of  lease  or  letting  out,  besides  the  rules 
to  which  it  is  subject  in  common  -with  other  agreements,  and  which  are 
explained  under  the  title  of  conventional  obligatiojis,  is  governed  by 
certain  particular  rules,  which  are  the  subject  of  the  present  title. 


CHAPTER  I. 

OF    THE    NATURE    OF    THE  CONTRACT  OF  HIRE,  AND   OF  ITS  SEVERAL  KINDS. 

Art.  2639. — Lease  or  hire  is  a  synallagmatic  contract,  to  which  con- 
sent alone  is  sufficient,  and  by  which  one  party  gives  to  the  other  the 
enjoyment  of  a  thing,  or  his  labor,  at  a  fixed  price. 

Art.  2640. — To  this  contract,  as  to  that  of  sale,  three  things  are 
absolutely  necessary;  to  wit — the  thing,  the  price,  and  the  col''r^ent. 

Art.  2641. — The  price  should  be  certain  and  determiLi;ite,  and 
should  consist  of  money.  However,  it  may  consist  in  a  certain  quan- 
tity of  commodities,  or  even  in  a  portion  of  the  fruits  yielded  by  the 
thing  hired. 

11  R.  279. 

Art.  2642. — The  price,  notwitlistanding,  may  be  left  to  the  award 
of  a  third  person  named  and  determined,  and  then  the  contract  includes 
the  condition  that  this  person  shall  fix  the  price ;  and  if  he  cannot  or 
will  not  do  it,  there  is  no  hiring. 

The  contract  would  be  null,  if  the  price  were  left  to  be  fixed  by  a 
person  not  designated. 

Art.  2643. — There  are  two  species  of  contracts  of  letting  and  hiring; 
to  wit — 

1.  The  letting  out  of  things  ; 

2.  The  letting  out  of  labor  or  industry. 

Art.  2644. — To  let  a  thing  out  is  a  contract  by  which  one  of  the 
parties  binds  himself  to  grant  to  the  other  the  enjoyment  of  a  thing 
during  a  certain  time,  for  a  certain  stipulated  rent  or  hire  which  the 
other  binds  himself  to  pay  him. 

Art.  2645. — To  let  out  labor  or  industry  is  a  contract  by  which  one 
of  the  parties  binds  himself  to  do  something  for  the  other,  in  considera- 
tion of  a  certain  price  agreed  on  by  them  both. 


350  OF  LETTING  AND  HIRING. 

CHAPTER  II. 

OF    LETTING    OUT    THINGS. 

Section  I. —  General  Provisions. 

Art.  2646. — The  letting  out  of  things  is  of  two  kinds  ;  to  wit — 

1.  The  letting  out  houses  and  movables ; 

2.  The  letting  out  predial  or  country  estates. 

Art.  2647. — He  who  grants  a  lease  is  called  the  owner  or  lessor. 
He  to  whom  a  lease  is  made,  is  called  the  lessee  or  tenant.      : 

Art.  2648. — All  corporeal  things  are  susceptible  of  being  let  out, 
movable  as  well  immovable,  excepting  those  which  cannot  be  used  with- 
out being  destroyed  by  that  very  use. 

Art.  2649. — Certain  incorporeal  things  may  also  be  let  out,  such  as 
a  right  of  toll,  and  the  like  ;  but  there  are  some  which  cannot  be  the 
object  of  hire,  such  as  a  credit. 

Art.  2650. — A  right  of  service  cannot  be  leased  separately  from  the 
property  to  which  it  is  annexed. 

Art.  2651. — He  who  possesses  a  thing  belonging  to  another,  may 
let  it  to  a  third  person,  but  he  cannot  let  it  for  any  other  use  than  that 
to  which  it  is  usually  applied. 

Art.  2652. — He  who  lets  out  the  property  of  another,  warrants  the 
enjoyment  of  it  against  the  claim  of  the  owner. 

Art.  2653. — Leases  may  be  made  either  by  written  or  verbal  con- 
tract. 

2  L.  15T. 

Art.  2654. — The  duration  and  the  conditions  of  the  leases  are 
generally  regulated  by  contract,  or  by  mutual  consent. 

Art.  2655. — If  the  renting  of  a  house  or  other  edifice,  or  of  an 
apartment,  has  been  made  without  fixing  its  duration,  the  lease  shall  be 
considered  to  have  been  made  by  the  month. 

2  L.  157 ;  C  E.  262  ;  1  A.  IT. 

Art.  2656. — The  parties  must  abide  by  the  agreement  as  fixed  at  the 
time  of  the  lease.  If  no  time  for  its  duration  has  been  agreed  on,  the 
party  desiring  to  put  an  end  to  it,  must  give  notice  in  writing  to  the 
other,  at  least  fifteen  days  before  the  expiration  of  the  month,  which  has 
begun  to  run. 

1  E.  262 ;  1  A.  17 ;  Seo  11  L.  394. 

Art.  2657. — The  lease  of  a  predial  estate,  when  the  time  has  not 
been  specified,  is  presumed  to  be  for  one  year,  as  that  time  is  necessary 
in  this  State  to  enable  the  farmer  to  make  his  crop,  and  to  gather  in  all 
the  produce  of  the  estate  which  he  has  rented. 

Art.  2658. — If,  after  the  lease  of  a  predial  estate  has  expired,  the 
farmer  should  still  continue  to  possess  the  same  during  one  month  with- 
out any  step  having  been  taken,  either  by  the  lessor  or  by  a  new  lessee, 
to  cause  him  to  deliver  up  the  possession  of  the  estate,  the  former  lease 
shall  continue  subject  to  the  same  clauses  and  conditions  which  it  con- 
tained, but  it  shall  continue  only  for  the  year  next  following  the  expira 
tion  of  the  lease. 


351  OF  LETTING  AND  HIRING.  351 

Art.  2659. — If  the  tenant  either  of  a  house  or  of  a  room  should  con 
tinue  in  possession  for  a  week  after  his  lease  has  expired,  without  any 
opposition  being  made  thereto  by  the  lessor,  the  lease  shall  be  presumed 
to  have  been  continued,  and  he  cannot  be  compelled  to  deliver  up  the 
house  or  room,  without  having  received  the  legal  notice  or  warning  di- 
rected by  article  2656. 

2  L.  161 ;  4  L.  197 ;  C  R.  26^ ;  1  A.  17. 

Art  2660. — In  the  cases  provided  for  in  the  two  preceding  articles, 
the  security  given  for  the  payment  of  the  rent  shall  not  extend  to  the  ob- 
ligations resulting  from  the  lease  being  thus  prolonged. 

Art.  2661. — When  notice  has  been  given,  the  tenant,  although  he 
may  have  continued  in  possession,  cannot  pretend  that  there  has  been  a 
tacit  renewal  of  the  lease. 

Section  II. — Of  the  Obligations  and  Rights  of  the  Lessor. 

Art.  2662. — The  lessor  is  bound  from  the  very  nature  of  the  con- 
tract, and  without  any  clause  to  that  effect : 

1.  To  deliver  the  thing  leased  to  the  lessee; 

2.  To  maintain  the  thing  in  a  condition  such  as  to  serve  the  use  for 
which  it  is  hired ; 

3.  To  cause  the  lessee  to  be  in  peaceable  possession  of  the  tiling  du- 
ring the  continuance,  of  the  lease. 

Art.  2663. — The  lessor  is  bound  to  deliver  the  thing  in  good  condi- 
tion, and  free  from  any  repairs.  He  ought  to  make,  during  the  continu- 
ance of  the  lease,  all  the  repairs  which  may  accidentally  become  neces- 
sary ;  except  those  which  the  tenant  is  bound  to  make,  as  hereafter  di- 
rected. 

See  4  R.  428 ;  8  E.  168 ;  5  A.  713. 

Art.  2664. — If  the  lessor  do  not  make  the  necessary  repairs  in  the 
manner  required  in  the  preceding  article,  the  lessee  may  call  on  him  to 
do  it.  If  he  refuse  or  neglect  to  make  them,  the  lessee  may  himself 
cause  them  to  be  made,  and  deduct  the  price  from  the  rent  due,  on  prov- 
ing that  the  repairs  were  indispensable,  and  that  the  price  which  he  has 
paid,  was  just  and  reasonable. 

1  A.421. 

Art.  2665. — The  lessor  guarantees  the  lessee  against  all  the  vices 
and  defects  of  the  thing,  wliicli  may  prevent  its  being  used,  even  in  case 
it  should  appear  that  he  knew  notliing  of  the  existence  of  such  vices  and 
defects,  at  the  time  the  lease  was  made,  and  even  if  they  have  arisen 
since,  provided  they  do  not  arise  from  the  fault  of  the  lessee  ;  and  if  any 
loss  should  result  to  the  lessee  from  the  defect,  the  lessor  shall  be  bound 
to  indemnify  him  for  the  same. 

4L.223;  6  A.  4SS. 

Art.  2666. — If  the  lessee  be  evicted,  the  lessor  is  answerable  for  the 
damage  and  loss  which  he  sustains  by  the  interruption  of  the  lease. 

Art.  2667. — If,  during  the  lease,  the  thing  be  totally  destroyed  by 
an  unforeseen  event,  or  if  it  be  taken  for  a  purpose  of  public  utility,  the 
lease  is  at  an  end.  If  it  be  only  destroyed  in  part,  the  lessee  may  either 
demand  a  diminution  of  the  price,  or  a  revocation  of  the  lease.  In  nei- 
ther case  has  he  any  claim  for  damages. 

14  L.  001;  8ee5L.4S2. 


352  OF  LETTING  AND  HIRING. 

Akt.  2668. — The  lessor  has  not  the  right  to  make  any  alteration  in 
the  thing,  during  the  continuance  of  the  lease. 

Art.  2669. — If,  without  any  fault  of  the  lessor,  the  thing  ceases  to 
be  fit  for  the  purpose  for  which  it  was  leased,  or  if  the  use  be  much  im- 
peded, as  if  a  neighbor,  by  raising  his  walls,  shall  intercept  the  light  of 
a  house  leased,  the  lessee  may,  according  to  circumstances,  obtain  the 
annulment  of  the  lease,  but  has  no  claim  for  indemnity. 

Art.  2670. — If  during  the  continuance  of  the  lease,  the  thing  leased 
should  be  in  want  of  repairs,  and  if  those  repairs  cannot  be  postponed 
until  the  expiration-  of  the  lease,  the  tenant  must  suffer  such  repairs  to 
be  made,  whatever  be  the  inconveniency  he  undergoes  thereby,  and  though 
he  be  deprived  either  totally  or  in  part  of  the  use  of  the  thing  leased  to 
him,  during  the  making  of  the  repairs.  But  in  case  such  repairs  should 
continue  for  a  longer  time  than  one  month,  the  price  of  the  rent  shall  be 
lessened  in  proportion  to  the  time  during  which  the  repairs  have  con- 
tinued, and  to  the  parts  of  the  tenement  of  the  use  of  which  the  lessee 
has  thereby  been  deprived. 

And  the  whole  of  the  rent  shall  be  remitted,  if  the  repairs  have  been 
of  such  nature  as  to  oblige  the  tenant  to  leave  the  house  or  the  room,  and 
to  take  another  house,  while  that  which  he  had  leased  was  repairing. 

11  L.  193. 

Art.  2671. — If,  in  the  lease  of  a  predial  estate,  the  premises  have 
been  stated  to  be  of  a  greater  extent  than  they  in  reality  are,  the  lessee 
may  claim  an  abatement  of  the  rent,  in  the  cages  and  subject  to  the  pro- 
visions prescribed  in  the  title  of  sale. 

Art.  2672. — The  lessor,  and  not  the  lessee,  unless  there  be  a  stipu 
lation  to  the  contrary,  must  bear  all  the  real  charges  with  which  the  thing 
leased  is  burdened.  Thus  he  has  to  pay  the  taxes  rents  and  other  dues 
imposed  upon  the  thing  leased. 

^  11  E.  225. 

Art.  2673. — The  lessor  is  not  bound  to  guarantee  the  lessee  against 
disturbance  caused  by  persons  not  claiming  any  right  to  the  premises  ; 
but  in  that  case  the  lessee  has  a  right  of  action  for  damages  sustained 
against  the  person  occasioning  such  disturbance. 

11  L.  173. 

Art.  2674. — If  the  persons  by  whom  those  acts  of  disturbance  have 
been  committed,  pretend  to  have  a  right  to  the  thing  leased,  or  if  the 
lessee  is  cited  to  appear  before  a  court  of  justice  to  answer  to  the  com- 
plaint of  the  persons  thus  claiming  the  whole  or  a  part  of  the  thing  leased, 
or  claiming  some  species  of  services  on  the  same,  he  shall  call  the  lessor 
in  warranty,  and  shall  be  dismissed  from  the  suit,  if  he  wishes  it,  by 
naming  the  person  under  whose  rights  he  possesses. 

Art.  2675. — The  lessor  has,  for  the  payment  of  his  rent,  and  other 
obligations  of  the  lease,  a  right  of  pledge  on  the  movable  effects  of  the 
lessee,  which  are  found  on  the  property  leased. 

In  the  case  of  predial  estates,  this  right  embraces  every  thing  tha 
serves  for  the  labors  of  the  farm,  the  furniture  of  the  lessee's  house,  and 
the  fruits  produced  during  the  lease  of  the  land :  and  in  the  case  of 
houses  and  other  edifices,  it  includes  the  furniture  of  the  lessee,  and  the 
merchandise  contained  in  the  house  or  apartment,  if  it  be  a  store  or  shop. 

Stat,  nth  February^  1852,  p.  13.— The  lessee  shall  be  entitled  to  re- 


353  OF  LETTING  AND  HIRING.  353 

tain,  out  of  the  property  subjected  by  law  to  the  lessor's  privilege,  his 
clothes  and  linen  and  those  of  his  wife  and  family ;  his  bed,  and  those  of 
his  wife  and  family ;  his  arras,  military  accoutrements,  and  the  tools  and 
instruments  necessary  for  the  exercise  of  the  trade  or  profession  by  which 
he  gains  his  living,  and  that  of  his  family. 

6  Pw  292 ;  4  A.  144 ;  5  A.  712 ;  Sec  8  L.  511 :  17  L.  44.3^  18  L.  500 ;  5  R.  213. 

Art.  2G76. — This  right  includes,  not  only  the  effects  of  the  prin- 
cipal lessee  or  tenant,  but  those  of  the  under-tenant,  so  far  as  tlie  latter 
is  indebted  to  the  principal  lessee,  at  the  time  when  the  proprietor  chooses 
to  exercise  his  right. 

A  payment  made  in  anticipation,  by  the  under-tenant  to  his  principal, 
does  not  release  him  from  the  owner's  claim. 

8  L.  11,  15 ;  18  L.  498 ;  6  R.  292 ;  11  R.  225 ;  See  5  L.  213. 

Art.  2G77. — This  right  of  pledge  affects,  not  only  the  movables  of 
the  lessee  and  under-lessee,  but  also  those  belonging  to  third  persons, 
when  their  goods  arc  contained  in  the  house  or  store,  by  their  own  con- 
sent, express  or  implied. 

18  L.  448 ;  6  R.  292 ;  11  R.  225 ;  See  5  R.  21.3. 

Art.  2678. — Movables  are  not  subject  to  this  right,  when  they  are 
only  transiently  or  accidentally  in  the  house,  store,  or  shop,  such  as  the 
baggage  of  a  traveller  in  an  inn,  merchandise  sent  to  a  workman  to  be 
made  np  or  repaired,  and  effects  lodged  in  the  store  of  an  auctioneer  to 
be  sold. 

8  L.  509. 

• 
Art.  2679. — In  the  exercise  of  this  right,  the  lessor  may  seize  the 
objects,  which  are  subject  to  it,  before  the  lessee  takes  them  away,  or 
within  fifteen  days  after  they  are  taken  away,  if  they  continue  to  be  the 
property  of  the  lessee,  and  can  be  identified. 

Section  III. —  Of  the  Obligations  and  Rights  of  the  Lessee. 

Art.  2680. — The  lessee  is  bound  : 

1.  To  enjoy  the  thing  leased  as  a  good  administrator,  according  to 
the  use  for  which  it  was  intended  by  the  lease ; 

2.  To  i^ay  the  rent  at  the  terms  agreed  on. 

2  N.  S.  451 ;  13  L.  193. 

Art.  2681. — If  tlie  lessee  makes  another  use  of  the  thing  than  that 
for  which  it  was  intended,  and  if  any  loss  is  thereby  sustained  by  the 
lessor,  the  latter  may  obtain  the  dissolution  of  the  lease. 

The  lessee,  in  that  case,  shall  be  bound  to  pay  the  rent,  until  the 
thing  is  again  leased  out ;  and  the  lessee  is  also  liable  for  all  the  losses 
which  the  proprietor  may  have  sustained  through  his  misconduct. 

1  A.  421. 

Art.  2682. — The  lessee  may  be  expelled  from  the  tenement,  if  he 
fails  to  pay  the  rent  when  it  becomes  due. 

12  L.  861 ;  1  A.  180,  421. 

Art.  2683. — When  the  lessor  has  given  notice  to  the  lessee,  in  the 
23 


354  OF  LETTING  AND  HIRING. 

manner  directed  by  the  law,  to  quit  the  property,  and  the  lessee  persists 
in  remaining  on  it,  the  lessor  nia_y  have  him  summoned  before  a  justice 
of  the  peace,  and  condemned  to  depart ;  and  if,  three  days  after  notice 
of  the  judgment,  he  has  not  obeyed,  the  justice  of  the  peace  may  order 
that  he  shall  be  expelled,  and  that  the  property  shall  be  cleared  by  the 
constable,  at  his  expense. 

8  N.  S.  563 ;  10  E.  407;  1  A.  180 ;  See  11  E.  39-i. 

Art.  2G84. — The  constable,  charged  with  the  execution  of  this  order, 
may  force  the  doors  and  windows,  if  they  are  shut,  and  seize  and  sell 
such  portion  of  the  effects  of  the  lessee  as  may  be  necessary  to  pay  the 
'••osts. 

10  K.  407. 

Art.  2685. — The  lessee  is  bound  to  cause  all  necessary  repairs  to  be 
made  which  it  is  incumbent  on  lessees  to  make,  unless  the  contrary  hath 
been  stipulated. 

Art.  2686. — The  repairs,  which  must  be  made  at  the  expense  of  the 
tenant,  are,  those  which,  during  the  lease,  it  becomes  necessary  to  make  : 

To  the  hearth,  backs  of  chimneys  and  chimney  casings ; 

To  the  plastering  of  the  lower  part  of  interior  walls  ; 

To  the  pavement  of  rooms,  when  it  is  but  partially  broken,  but  not 
when  it  is  in  a  state  of  decay ; 

For  replacing  window  glass,  when  broken  accidentally,  but  not  when 
broken  either  in  whole  or  in  their  greatest  part  by  a  hail-storm  or  by  any 
other  inevitable  accident ; 

To  windows,  shutters,  partitions,  shop  windows,  locks  and  hinges,  and 
ever;^  thing  of  that  kind,  according  to  the  custom  of  the  place. 

4  L.  160 ;  See  1961. 

Art.  2687. — The  expenses  of  the  repairs,  which  unforeseen  events  or 
decay  may  render  necessary,  must  be  supported  by  the  lessor,  though 
such  repairs  be  of  the  nature  of  those  which  are  usually  done  by  the 
lessee. 

14  L.  501. 

Art.  2688. — The  cleaning  of  wells  and  necessaries  shall  be  at  the 
expense  of  the  lessor,  unless  the  contrary  has  been  stipulated. 

Art.  2680. — If  an  inventory  has  been  made  of  the  premises,  in  which 
the  situation,  at  the  time  of  the  lease,  has  been  stated,  it  shall  the  duty 
of  the  lessee  to  deliver  back  every  thing  in  the  same  state  in  which  it  was, 
when  taken  possession  of  by  him,  making  however  the  necessary  allow- 
ance for  wear  and  tear  and  for  unavoidable  accidents. 

Art.  2690. — If  no  inventory  has  been  made,  the  lessee  is  presumed 
to  have  received  the  thing  in  good  order,  and  he  must  return  it  in  the 
same  state,  with  the  exceptions  contained  in  the  preceding  article. 

Art.  2691. — The  lessee  is  only  liable  for  the  injuries  and  losses  sus- 
tained through  his  own  fault. 

Art.  2692. — He  is  however  liable  for  the  waste  committed  by  the  per- 
sons of  his  family,  or  by  those  to  whom  he  may  have  made  a  sub-lease. 

Art.  2693. — He  can  only  be  liable  for  the  destruction  occasioned  by 
fire,  when  it  is  proved  that  the  same  has  happened  either  by  his  own 
fault  or  neglect,  or  by  that  of  his  family. 

Art.  2694. — It  is  the  duty  of  a  farmer  of  predial  estate,  to  prevent 
the  same  being  encroached  upon^  and  in  case  of  such  encroachment,  to 


355  OF  LETTING  AND  HIRING.  355 

give  notice  to  the  proprietor,  in  defect  of  which  he  shall  be  liable  in 
damages. 

Art.  2695. — It  is  the  duty  of  a  person,  who  has  one  or  several  slaves 
on  hire,  to  give  immediate  notice  to  the  owner,  should  any  of  them  hap- 
pen to  get  sick  or  to  run  away ;  in  default  thereof  he  shall  be  liable  in 
damages. 

6  A.  804. 

Art.  2696. — The  lessee  has  the  right  to  under-lease,  or  even  to  cede 
his  lease  to  another  person,  unless  this  power  has  been  expressly  inter- 
dicted. 

18  L.  T3. 

The  interdiction  may  be  for  the  whole,  or  for  a  part ;  and  this  clause 
is  always  construed  strictly. 

4  A.  40. 

Art.  2697. — The  lessee  has  a  right  to  remove  the  improvements  and 
additions  wliich  he  has  made  to  the  thing  let,  provided  he  leaves  it  in 
the  state  in  which  he  received  it. 

But  if  these  additions  be  made  with  lime  and  cement,  the  lessor  may 
retain  them,  on  paying  a  fair  price. 

1  A.  421 ;  Sec  2  K.  66. 


Section  IV. — Of  the  Dissolution  of  Leases. 

Art.  2698. — The  lease  ceases  of  course,  at  the  expiration  of  the 
time  agreed  on. 

Art.  2699. — It  is  also  dissolved  by  the  loss  of  the  thing  leased. 

14  L.  501. 

Art.  2700. — The  neglect  of  the  lessor  or  lessee  to  fulfil  their  en- 
gagements, may  also  give  cause  for  a  dissolution  of  the  lease,  in  the 
manner  expressed  concerning  contracts  in  general,  except  that  the  judge 
cannot  order  any  delay  of  the  dissolution. 

1  A.  421;  4  A.  40. 

Art.  2701. — A  lease  made  by  one  having  a  right  of  usufruct,  ends 
when  the  right  of  usufruct  ceases. 

The  les.see  has  no  right  to  an  indemnification  from  the  heirs  of  the 
lessor,  if  the  lessor  has  made  known  to  him  the  title  under  wliich  he 
possessed. 

Art.  2702. — A  contract  for  letting  out  is  not  dissolved  by  the  death 
of  the  lessor,  ner  by  that  of  the  lessee  ;  their  respective  heirs  are  bound 
by  the  contract. 

Art.  2703. — The  lessor  cannot  dissolve  the  lease  for  the  purpose  of 
occupying  himself  the  premises,  unless  that  right  has  been  reserved  to 
him  by  the  contract. 

Art.  270 1. — If  the  lessor  sells  the  thing  leased,  the  purchaser  can- 
not turn  out  the  tenant  before  his  lease  has  expired,  unless  the  contrary 
has  been  stipulated  in  the  contract. 

Art.  2705. — If  the  lessor  has  reserved  to  himself  in  the  agreement, 
the  right  of  taking  possession  of  the  thing  leased,  whenever  he  should 
think  proper,  he  is  not  bound  to  make  any  indemnification  to  the  lessee, 
unless  it  be  specified  by  the  contract ;  the  lessor  is  only  bound  in  that 
case,  to  give  him  the  legal  notice  or  warning  prescribed  in  article  2656 


356  OF  LETTING  AND  HIRING. 

Akt.  2706. — If  it  has  been  agreed  by  the  parties,  at  the  time  the 
lease  was  made,  that  in  case  the  property  was  sold,  the  purchaser  shovild 
be  at  liberty  to  take  immediate  possession,  and  if  no  indomnitication  has 
been  stipnlated,  the  lessor  shall  be  bound  to  indemnify  the  lessee  in  the 
following  manner  : 

Akt.  2707. — If  it  be  a  house,  room,  or  shop,  the  lessor  shall  pay  aj> 
an  indemnification  to  the  evicted  tenant,  a  sum  eijual  to  the  amount  of 
*the  rent,  for  the  time,  which,  according  to  the  article  '2G.")6,  is  to  elapse 
between  the  notice  and  the  going  out. 

10  L.  22. 

Art.  2708. — If  it  be  a  predial  estate,  the  indemnification  to  be  paid 
by  the  lessor  to  the  evicted  farmer,  shall  be  the  third  of  the  price  of  the 
rent,  during  time  whidi  lias  yet  to  elapse. 

Art.  2709. — Tlie  (juantum  of  damages  shall  be  determined  by  skil- 
ful men,  when  the  controversy  relates  to  manufactures,  mines  and  things 
of  that  kind,  which  require  great  disbursements. 

Art.  2710. — The  pm-chaser  who  wishes  to  use  the  riglit  reserved  by 
the  lease,  is  moreover  bound  to  give  previous  notice  to  the  tenant  ac- 
cording to  article  2656. 

The  farmers  of  predial  estates  shall  have  one  year's  notice. 

Art.  2711. — Previous  to  the  expulsion  of  a  farmer  or  tenant,  tlie 
before  prescribed  indemnifications  must  be  paid  to  him,  either  by  the  les- 
sor, or,  in  his  default,  by  the  new  purchaser. 

Art.  2712. — If  the  lease  has  not  been  reduced  to  writing,  the  pur- 
chaser cannot  be  compelled  to  give  any  indemuifioation. 

Art.  2713.- — A  person  who  has  purchased  an  estate,  the  former  pro- 
prietor of  which  has  reserved  by  contract  the  right  of  redemption,  can- 
not turn  out  the  lessee,  until,  by  the  expiration  of  the  time  fixed  for  the 
redemption,  the  purchaser  becomes  the  irrevocable  owner. 

Art.  2714. — The  tenant  of  a  predial  estate  cannot  claim  an  abate- 
ment of  the  rent,  under  tlie  plea  that,  during  the  lease,  either  the  whole, 
or  a  part  of  his  croj),  has  been  destroyed  by  accidents,  unless  those  ac- 
cidents be  of  such  an  extraordinary  nature,  that  they  could  not  have 
been  foreseen  by  either  of  the  parties  at  the  time  the  contract  was  made, 
such  as  the  ravages  of  war  extending  over  a  country  then  at  peace,  and 
where  no  person  entertained  any  apprehension  of  being  exposed  to  inva- 
sion or  the  like. 

But  even  in  these  cases,  the  loss  suffered  must  havp  been  equal  to 
the  value  of  one-half  of  the  crop  at  least,  to  entitle  the  tenant  to  an 
abatement  of  the  rent. 

The  tenant  has  no  right  to  an  abatement,  if  it  is  stipulated  in  the 
contract,  that  the  tenant  shall  run  all  the  chances  of  all  foreseen  and 
unforeseen  accidents. 

Art.  2715. — The  tenant  cannot  obtain  an  abatement,  when  the  loss 
of  the  fruit  takes  place  after  its  separation  from  the  earth,  unless  the 
lease  gives  to  the  proprietor  a  portion  of  the  crop  in  kind,  in  which  case 
the  proprietor  ought  to  bear  his  share  of  the  loss,  provided  the  tenant 
has  committed  no  unreasonable  delay  in  delivering  his  portion  of  the 
crop. 


357  .  OF  LETTING  AND  HIRING.  357 

CHAPTER  III. 

OF  THE  LETTING  OUT  OF  LABOR  OR  INDUSTRY. 

Art.  27  1G. — Labor  may  be  let  out  in  three  ways  : 

1.  Laborers  may  hire  tlicir  services  to  another  person ; 

2.  Carriers  and  watermen  hire  out  their  services  for  the  conveyance 
either  of  persons  or  of  goods  and  merchandise ; 

3.  Workmen  hire  out  their  hibor  or  industry  to  make  buildings  or 
other  works. 

Section  I. —  Of  the  Hiring  of  Servants  and  Wm-kmcn. 

Art.  2717. — A  man  can  only  hire  out  his  services  for  a  certain 
limited  time,  or  for  the  performance  of  a  certain  enterprise. 

Art.  2718. — A  man  is  at  liberty  to  dismiss  a  hired  servant  attached 
to  his  person  or  family,  without  assigning  any  reason  for  so  doing.  The 
servant  is  also  free  to  depart  without  assigning  any  cause. 

8  L.  185. 

Art.  2719. — Laborers  who  hire  themselves  out  to  serve  on  planta- 
tions, or  to  work  in  manufactures,  have  not  the  right  of  leaving  the  per- 
son who  has  hired  them,  nor  can  they  be  sent  away  by  the  proprietor, 
until  the  time  has  expired  during  which  they  had  agreed  to  serve,  un- 
less good  and  just  causes  can  be  assigned. 

8  L.  185;  12  L.  69 ;  1  R.  319, 332. 

Art.  2720. — If,  without  any  serious  ground  of  complaint,  a  man 
should  send  away  a  laborer  whose  services  he  has  hired  for  a  certain 
time,  before  that  time  has  expired,  he  shall  be  bound  to  pay  to  such'  la- 
borer the  whole  of  the  salaries  which  he  would  have  been  entitled  to 
receive,  had  the  full  term  of  his  services  arrived. 

3L.  299;  SL.  185;  12  L.  67;  15  L.  371 ;  IR.  319, 332;  12  R.  648. 

Art.  2721. — But  if,  on  the  other  hand,  a  laborer,  after  having  hired 
out  his  services,  should  leave  his  employer,  before  the  time  of  his  en- 
gagement has  expired,  without  having  any  just  cause  of  complaint  against 
his  employer,  the  laborer  sliall  then  forfeit  all  the  wages  that  may  be  due 
to  him,  and  shall  moreover  be  compelled  to  repay  all  the  money  he  has 
received,  cither  as  due  for  his  wages,  or  in  advance  thereof  on  the  run- 
ning year  or  on  the  time  of  his  engagement.  , 

U  L.  369,  373;  12  L  69 ;  1  R.  819,332. 

Section  II. — Of  Carriers  a?id  Watermen. 

Art.  2722. — Carriers  and  watermen  are  subject,  with  respect  to  the 
safe  keeping  and  preservation  of  the  things  intrusted  to  them,  to  the 
same  obligations  and  duties  which  are  imposed  on  tavern-keepers  in  the 
title  of  dcjiosit  and  sequestration. 

I  R.  410  ;  11  R.  24. 

Art.  2723. — They  are  answerable,  not  only  for  what  they  have  actu- 


358  OF  LETTING  AND  HIRING. 

ally  received  in  their  vessel  or  vehicle,  but  also  for  what  has  been  de 
livered  to  them  at  the  port  or  place  of  deposit,  to  be  placed  in  the  ves 
sel  or  carriage. 

See  9  L.  33. 

Art.  2724. — The  price  of  a  passage  agreed  for  to  be  paid  by  a  wo- 
man, for  going  by  sea  from  one  country  to  another,  shall  not  be  increased. 
in  case  the  woman  has  a  child  during  the  voyage,  whether  her  pregnancy 
.was  known  or  not  by  the  master  of  the  ship. 

Art.  2725. — Carriers  and  watermen  may  be  liable  for  the  loss  or 
damage  of  the  things  intrusted  to  their  care,  unless  they  can  prove  that 
such  loss  or  damage  has  been  occasioned  by  accidental  and  uncontrol 
lable  events. 

4L.  223;  9L.33;  1  11.410;  11  K.  24;  5  A.  TOG;  Seo  1  L.  349 ;  SN.  S.  120;  10R.4;34;  6  M.  6S3. 

Art.  2726. — The  masters  of  ships  and  other  vessels,  and  theif 
crews,  have  a  privilege  on  the  ship,  for  the  wages  due  them  on  the  last 
voyage. 

Section  III. — Of  Flots  for  Buildings  and  other  Works. 

Art.  2727. — To  build  by  a  plot,  or  to  work  by  the  job,  is  to  under 
take  a  building  or  a  work  for  a  certain  stipulated  price. 

2  A.  549. 

Art.  2728. — A  person  who  undertakes  to  make  a  work,  may  agree, 
either  to  furnish  his  work  and  industry  alone,  or  to  furnish  also  the  ma- 
terials necessary  for  such  a  work. 

Art.  2729. — When  the  undertaker  furnishes  the  materials  for  the 
work,  if  the  work  be  destroyed,  in  whatever  manner  it  may  happen, 
previous  to  its  being  delivered  to  the  owner,  the  loss  shall  be  sustained 
by  the  undertaker,  unless  the  proprietor  be  in  default  for  not  rcciving 
it,  though  duly  notified  to  do  so. 

Sec  9  L.  435. 

Art.  2730.- — When  the  undertaker  only  furnishes  his  work  and  in- 
dustry, should  the  thing  be  destroyed  the  undertaker  is  only  liable,  in 
case  the  loss  has  been  occasioned  by  his  fault. 

Art.  2731. — In  the  case  mentioned  in  the  preceding  article,  if  the 
thing  be  destroyed  by  accident  and  not  owing  to  any  fault  of  the  under- 
taker, before  the  same  be  delivered,  and  the  owner  be  in  default  for  not 
receiving  it,  the  undertaker  shall  not  be  entitled  to  his  salaries,  unless 
the  destruction  be  owing  to  the  badness  of  the  materials  used  in  the 
building. 

In  line  3,  after  the  word  "and,"  read  "-witliout  the  owner  bein;,',"  &c.,  See  French  text. 

Art.  2732. — If  the  work  be  composed  of  detaclicd  pieces,  or  made 
at  the  rate  of  so  much  a  measure,  it  may  be  delivered  separately,  and 
that  delivery  shall  be  presumed  to  have  taken  place,  if  the  proprietor 
has  paid  to  the  undertaker  the  price  due  for  the  parts  of  the  work 
which  have  already  been  completed. 

9  L.  23. 

Art.  2733. — If  a  building  which  an  architect  or  other  workman  has 
undertaken  to  make  by  the  job,  should  fall  to  ruin  either  in  whole  or  in 
part,  on  account  of  the  badness  of  the  workmanship,  the  architect  or  un- 
dertaker shall  bear  the  loss,  if  the  building  falls  to  ruin  in  the  course  of 


359  OF  LETTING  AND  HIRING.  35y 

ten  years,  if  it  be  a  stone  or  brick  building  and  of  five  years  if  it  be 
built  of  wood  or  with  frames  filled  with  bricks. 

Art.  2734. — When  an  architect  or  other  workman  has  undertaken 
the  building  of  a  house  by  the  job,  according  to  a  plan  agreed  on  be- 
tween him  and  the  proprietor  of  tlic  ground,  he  cannot  claim  an  increase 
of  the  price  agreed  on,  on  the  plea  of  the  original  plan  having  been 
changed  and  extended,  unless  he  can  prove  that  such  changes  have  been 
made  in  compliance  with  the  wishes  of  the  proprietor. 

2  L.  490  ;  4  R.  899  ;  5  R.  1T9  ;  9  R.  402 ;  10  R.  94. 

Art.  2735. — An  exception  is  made  to  the  above  provision,  in  a  ease 
where  the  alteration  or  increase  is  so  great,  that  it  cannot  be  supposed 
to  have  been  made  without  the  knowledge  of  the  owner,  and  also  where 
the  alteration  or  iucrease  was  necessary,  and  has  not  been  foreseen. 

4  L.  101 ;  14  L.  342. 

Art.  2736. — The  proprietor  has  a  right  to  cancel  at  pleasure  the 
bargain  he  has  made,  even  in  case  the  work  has  already  been  commenced, 
by  paying  the  undertaker  for  the  expense  and  labor  already  incurred, 
and  such  damages  as  the  nature  of  the  case  may  require. 

2  L.  331 ;  6  L.  65G ;  8  L.  14T ;  5  A.  220. 

Art.  2737. — Contracts  for  hiring  out  work  are  cancelled  by  the 
death  of  the  workman,  architect,  or  undertaker,  unless  the  proprietor 
should  consent  that  the  work  should  be  continued  by  the  heir  or  heirs 
of  the  architect,  or  by  workmen  employed  for  that  purjjose  by  the  heirs. 

3  A.  2S5. 

Art.  2738. — The  proprietor  is  only  bound,  in  the  former  case,  to 
pay  to  the  heirs  of  the  undertaker,  the  value  of  the  work  that  has  al- 
ready been  done,  and  of  the  materials  already  prepared,  proportionably 
to  the  price  agreed  on,  in  ease  such  work  and  materials  may  be  useful 
to  him. 

8  A.  285. 

Art.  2739. — The  undertaker  is  responsible  for  the  deeds  of  the  per- 
sons employed  by  him. 

Art.  2740. — If  an  undertaker  fails  to  do  the  work  he  has  contracted 
for,  or  if  he  does  not  execute  it  in  tlie  manner,  and  at  the  time  he  has 
agreed  to  do  it,  he  shall  be  liable  in  damages  for  the  losses  that  may 
ensue  from  his  non-compliance  with  his  contract. 

8  L.  1,  32S. 

Art.  2741, — Masons,  carpenters,  and  other  workmen,  who  have 
been  employed  in  the  construction  of  a  building  or  other  works,  under- 
taken by  the  job,  have  their  action  against  the  proprietor  of  the  house 
on  which  they  have  worked,  only  for  the  sum  which  may  be  due  by  him 
to  the  undertaker  at  the  time  their  action  is  commenced. 

8L.  53G;  11  I..  45-3. 

Art.  2742. — Masons,  carpenters,  blacksmiths,  and  all  other  artifi- 
cers, who  undertake  work  by  the  job,  are  bound  by  the  provisions  con- 
tained in  the  present  section,  for  they  may  be  considered  as  undertakers 
cacli  in  his  particular  line  of  business. 

10  L.  231. 

Art.  2743. — The  undertaker  has  a  privilege,  for  the  payment  of  his 
labor,  on   the  building  or  other  work,   which  he  may  have  constructed 


360  OF  RENTS  AND  ANNUITIES. 

Workmen  employed  immediately  by  the  owner,  in  tbe  construction 
or  repair  of  any  building,  have  the  same  privilege. 

6  N.  S.  169 ;  2  L.  4S7 :  6  E.  833 ;  4  A.  97 ;  5  A.  4-31. 

Art.  2744. — Workmen  and  persons  furnishing  materials,  who  hav6 
contracted  with  the  undertaker,  have  no  action  against  the  owner  who 
has  paid  him.  If  the  undertaker  be  not  paid,  they  may  cause  the  mo- 
neys due  him  to  be  seized,  and  they  are  of  right  subrogated  to  his 
privilege. 

2  L.  4S7 ;  S  L.  D3C ;  11  L.  45S ;  G  R.  333,  532,  37S ;  4  A.  97 ;  5  A.  481. 

Art.  2745. — The  payments,  which  the  proprietor  may  have  made 
in  anticipation  to  the  undertaker,  are  considered,  with  regard  to  work- 
men and  to  those  who  furnish  materials,  as  not  having  been  made,  and 
do  not  prevent  them  from  exercising  the  right  granted  them  by  the  pre- 
ceding article. 

2  L.  4S7 ;  8  L.  530 ;  11  L.  45S ;  6  E.  333 ;  4  A.  97 ;  G  A.  GO. 

Art.  2740. — No  agreement  or  undertaking  for  work  exceeding  five 
hundred  dollars,  which  has  not  been  reduced  to  writing,  and  registered 
with  the  recorder  of  mortgages,  shall  enjoy  the  privilege  above  granted. 

G  N.  S.  476 ;  2  L.  4S7 ;  5  L.  94 ;  4  A.  97 ;  5  A.  431 ;  6  A.  G3,  4S0 ;  V.  274;5,  3332. 

Art.  2747. — For  those  not  amounting  to  five  hundred  dollars,  this 
formality  is  dispensed  with ;  but  the  privilege  granted  to  them  is  pre- 
scribed against  after  six  months,  reckoning  from  the  day  when  the  work 
is  completed. 

16  L.  293;  See  15  L.  416. 

Art.  2748. — Workmen  employed  in  the  construction  or  repair  of 
ships  and  boats,  enjoy  the  privilege  established  above,  without  being 
bound  to  reduce  their  contracts  to  writing,  whatever  may  be  their 
amount ;  but  this  privilege  ceases,  if  they  have  allowed  the  ship  or  boat 
to  depart  without  exercising  their  right. 


TITLE  X. 

OF  RENTS  AND  ANNUITIES. 


Art.  2749. — There  are  two  species  of  rent ;  that  of  land,  which  ia 
properly  called  rent,  and  that  of  money. 


CHAPTEE  I. 

OF    THE    RENT    OF    LANDS. 


Art.  2750. — The  contract  of  rent  for  lands  is  a  contract,  by  which 
one  of  the  parties  conveys  and  cedes  to  the  other  a  tract  of  land,  or  any 
other  immovable  property,  and  stipulates  that  the  latter  shall  hold  it  as 
owner,  but  reserving  to  the  former  an  annual  rent   of   a  certain  sum  of 


351  OF  RENTS  AND  ANNUITIES.  36 i 

money,  or  of  a  certain  quantity  of  fruits,  which  the  other  party  binds 
himself  to  pay  him. 

Art.  275 1 . — It  is  of  the  essence  of  this  conveyance  that  it  be  made 
in  perpetuity.     If  it  be  made  but  for  a  limited  time,  it  is  a  lease. 

Art.  2752. — A  contract  of  sale,  in  which  it  is  stipulated  that  the 
price  shall  be  paid  at  a  future  time,  but  that  it  bears  interest  from  the 
day  of  sale,  is  not  a  contract  of  rent. 

On  the  contrary,  a  contract  made  bearing  the  name  of  a  sale,  in 
which  the  seller  docs  not  stipulate  the  payment  of  the  price,  but  a  cap- 
ital bearing  interest  forever,  is  a  contract  of  rent. 

1  A.  209. 

Art.  2753. — The  contract  of  rent  partakes  of  the  nature  of  sale  and 
of  lease  : 

Of  sale,  inasmuch  as  it  transfers  the  property  of  the  thing,  and 
subjects  the  party  to  the  same  warranty  which  is  imposed  on  the 
vendor ; 

And  of  lease,  inasmuch  as  it  subjects  the  rentee  to  the  payment  of 
rent. 

Art.  2754. — The  contract  of  rent  is  subjected  to  the  same  rules  as 
the  contract  of  sale,  except  in  the  cases  hereafter  specified. 

Art.  2755. — The  thing,  sold  with  reservation  of  rent,  becomes  the 
property  of  the'  person  receiving  it,  in  the  same  manner  as  a  thing  sold 
becomes  the  property  of  the  purchaser ;  but  whereas  the  purchaser  may 
make  what  use  he  pleases  of  the  thing  bought,  and  may  even  destroy 
it,  when  he  has  paid  the  price,  the  purchaser  under  reservation  of  rent 
is  bound  to  preserve  the  thing  in  good  condition,  that  it  may  continue 
capable  of  producing  wherewith  to  pay  the  rent. 

Art.  2756. — When  a  thing  sold  is  destroyed  from  unforeseen  accident, 
the  loss  falls  entirely  on  the  purchaser ;  in  case  of  a  sale  reserving  rent, 
the  loss  is  sustained  by  both  parties  ;  for,  on  one  side,  the  lessee  loses 
the  enjoyment  of  the  thing ;  and  on  the  other,  the  lessor  loses  the  right 
to  demand  the  rent,  which  is  extinguished. 

But  in  order  that  the  rent  be  extinguished,  the  thing  must  have 
perished  entirely;  if  it  be  lost  only  in  part,  the  rent  is  only  reducible 
in  proportion  to  the  loss. 

Art.  2757. — A  thing,  sold  and  paid- for  maybe  alienated  absolutely 
and  unconditionally ;  but  if  it  be  sold  with  a  rent  reserved,  it  remains 
perpetually  subject  to  the  rent,  into  whatsoever  hands  it  may  pass. 

1  A.  209. 

Art.  2758. — The  price  of  a  thing  sold  is  a  debt  personal  to  the  pur- 
chaser. But  where  there  has  been  rent  reserved,  it  is  a  charge  imposed 
on  the  property  ;  and  the  person  alienating  it,  is  only  answerable  for 
the  arrears  which  became  due,  while  he  was  in  the  possession. 

1  A.  209. 

Art.  2750. — The  rent  charge,  although  stipulated  to  be  perpetual, 
is  essentially  redeemable.  But  the  seller  may  determine  the  terms  of 
the  redemption,  and  stipulate  that  it  shall  not  take  place  until  after  a 
certain  time,  which  can  never  exceed  thirty  years. 


362  OF  RENTS  AND  ANNUITIES. 

Art.  2760. — If  tlic  value  of  the  property  has  been  determined  hy 
the  contract,  the  possessor,  who  wishes  to  redeem,  cannot  be  made  to 
pay  any  thing  beyond  that  value. 

Akt.  2761. — If  there  has  been  no  valuation,  the  rent  is  considered 
as  fixed  at  the  rate  of  six  per  cent,  on  the  value,  and  the  lessee  may 
pay  the  capital  at  that  valuation. 

Art.  2762. — The  renter  has  for  the  payment  of  his  rent  a  right  of 
mortgage  on  the  property,  commencing  from  the  date  of  the  contract. 
But  he  cannot  have  it  seized  and  sold;  unless  there  be  at  least  one  entire 
year's  rent  due. 

1  A.  200. 

Art.  2763. — The  rent  charge  being  inherent  to  the  property  bur- 
dened with  it,  is  itself  susceptible  of  being  mortgaged,  except  where  it 
has  been  gratuitously  established  for  the  benefit  of  a  third  person,  on 
condition  that  it  should  not  be  liable  to  seizure. 

1  A.  209. 


CHAPTER  XL 

OF    ANNUITIES. 

Art.  2764. — The  contract  of  annuity  is  that  by  which  one  party  de- 
livers to  another  a  sum  of  money,  and  agrees  not  to  reclaim  it,  so  long 
as  the  receiver  pays  the  rent  agreed  upon. 

Art.  2765. — This  annuity  may  be  either  perpetual  or  for  life. 

Art.  2766. — The  amount  of  annuity  for  life  can  in  no  case  exceed 
the  double  of  the  conventional  interest. 

The  amount  of  j^erpetual  annuity  cannot  exceed  the  conventional 
interest. 

Art.  2767. — Constituted  annuity  is  essentially  redeemable. 

The  parties  may  only  agree  that  the  same  shall  not  be  redeemed 
prior  to  a  time  which  cannot  exceed  ten  years,  or  without  having  warned 
the  creditor  a  time  before,  which  they  shtill  limit. 

Art.  2768. — The  debtor  of  a  constituted  annuity  may  be  compelled 
to  redeem  the  same  : 

1.  If  he  ceases  fulfilling  his  obligations  during  three  years  ; 

2.  If  he  does  not  give  to  the  lender  the  securities  promised  by  the 
contract. 

Art.  2769. — If  the  debtor  should  fail,  or  be  in  a  state  of  insolvency, 
the  capital  of  the  constituted  annuity  becomes  exigible,  but  only  up  to 
the  amount  at  which  it  is  rated,  according  to  the  order  of  contribution 
amongst  the  creditors. 

2  A.  129. 

Art.  2770. — The  debtor  may  be  compelled  by  his  security  to  redeem 
the  annuity  within  the  time  which  has  been  fixed  in  the  contract,  if  any 
time  has  been  fixed,  or  after  ten  years,  if  no  mention  be  made  of  the 
time  in  the  act. 

Art.  2771. — The  interest  of  the  sums  lent,  and  the  arrears  of  con- 


363  OF  PARTNERSHIP.  36o 

stituted  and  life  annuity,  cannot  bear  interest  but  from  the  day  a  ju 
dicial  demand  of  the  same  has  been  made  by  the  creditor,  and  when  in 
terest  is  due  for  at  least  one  whole  year. 


TITLE  XL 

OF    PARTNERSHIP. 
CHAPTER  L 

GENERAL    PROVISIONS. 

Art.  2772. — Partnership  is  a  synallagmatic  and  commutative  coa 
tract  made  between  two  or  more  persons  for  the  mutual  participation  ic 
the  profits  which  may  accrue  from  property,  ci'edit,  skill  or  industry, 
furnished  in  determined  proportions  by  the  parties. 

3  A.  19,  S19. 

Art.  2773. — It  may  be  made  by  all  persons  capable  of  contracting. 

Art.  2774. — It  is  regulated  by  the  rules  laid  down  in  the  title  of 
conventional  obligations,  in  all  things  not  differently-  provided  for  by 
this  title. 

Art.  2775. — All  partnerships  are  null  and  void,  which  are  formed 
for  any  purpose  forbidden  by  law  or  good  morals.  But  all  the  partners 
in  such  a  partnership  are  liable  in  solido  to  third  persons,  who  may  con- 
tract with  them  without  a  knowledge  of  the  illegal  or  immoral  object 
of  the  partnership. 

Art.  2776. — Partnerships  must  be  created  by  consent  of  the  parties. 

Art.  2777. — A  community  of  property  does  not  of  itself  create  a 
partnership,  however  that  property  may  be  acquired,  whether  by  pur- 
chase, donation,  accession,  inheritance,  or  prescription. 

17  L.  598. 

Art.  2778. — The  community  of  property,  created  by  marriage,  is 
not  a  partnership ;  it  is  the  effect  of  a  contract  governed  by  rules  pre- 
scribed for  that  purpose  in  this  code. 

Art.  2779. — Property,  when  brought  into  partnership,  or  acquired 
by  it,  and  the  profits,  wlien  tliey  are  kept  undivided  for  the  benefit  of 
the  partncr.ship,  are  called  partnership  stock. 

Art.  2780. — Property,  credit,  skill  and  industry  being  the  sources 
from  which  the  profits  of  a  partnership  may  be  drawn,  each  of  the  part- 
ners may  furnish  cither  or  all  of  these,  in  such  proportions  as  they  may 
mutually  agree. 

11  li.  12S. 


364  OF  PARTNERSHIP. 

Art.  2781. — By  credit^  in  the  foregoing  article,  is  meant,  not  only 
a  reputation  for  responsibility  as  to  pecuniary  concerns,  but  also  any 
quality  or  other  circumstance  that  may  acquire  the  good  will  of  others, 
and  contribute  to  the  prosperity  of  tJie  partnership. 

11  R.  128. 

Art.  2782. — It  is  of  the  essence  of  this  contract  that  a  profit  is 
contemplated,  and  that  each  of  the  parties  is  to  partake  therein ;  the 
proportion  they  are  respectively  to  receive,  is  regulated  by  the  stipula- 
tion of  the  parties,  where  they  make  any  :  where  none  are  made  for  this 
purpose,  the  proportion  is  regulated  by  law. 

Art.  2783. — It  is  not  necessary  under  the  last  article,  that  the  con- 
tract of  partnership  should  provide  for  the  actual  partition  of  tlie  profits. 
A  stipulation  that  the  profits  should  be  converted  into  stock  for  the 
benefit  of  all  the  parties  in  determined  proportions,  is  valid. 

Art.  2784. — A  participation  in  the  profits  of  a  partnership  carries 
with  it  a  liability  to  contribute  between  the  parties  to  the  expenses  and 
losses.  But  the  proportion,  like  that  of  the  profits,  may  be  regulated 
by  the  stipulation  of  the  parties,  and  where  they  make  none,  is  provided 
for  by  law; 

Art.  2785. — A  stipulation  that  one  of  the  contracting  parties  shall 
participate  in  the  profits  of  a  partnership,  but  shall  not  contribute  to 
losses,  is  void,  both  as  it  regards  the  partners  and  third  persons.  But 
in  the  case  of  a  partnership  m  commcndam ^  hereinafter  provided  for, 
the  liability  to  loss  may  be  limited  to  the  amount  of  stock  furnished. 

1  K.  307 ;  3  A.  19. 

Art.  278G. — The  foregoing  article  does  not  prevent  the  partners,  or 
any  one  of  them,  from  making  a  donation  of  their  or  his  profits,  arising 
from  the  partnership  stock,  to  another,  or  even  from  selling  the  same  for 
a  valuable  consideration ;  but  the  donee  or  vendee  is  not  on  that  account 
considered  as  a  partner. 

Art.  2787. — A  partnership  cannot  be  executor,  curator,  or  tutor, 
and  cannot  exercise  any  other  private  office. 

Art.  2788. — By  private  office,  in  this  code,  is  meant  such  trust  as 
relates  solely  to  the  interest  or  affairs  of  one  or  more  designated  indivi- 
duals, but  which  cannot  yet  be  executed  without  the  assent  of  the  ma- 
gistrate. 

Art.  2789. — The  nomination  of  a  partnership  to  any  private  office 
is  not  of  itself  void ;  where  it  is  a  trust  susceptible  of  being  exercised 
by  more  than  one  person,  it  shall  be  considered  as  a  nomination  of  all  the 
members  of  the  partnership,  individually,  who  belonged  to  it  at  the 
time  of  such  nomination ;  where  the  trust  can,  by  law,  only  be  exercised 
by  one  person,  the  first  named  partner  shall  be  deemed  to  have  been  the 
person  intended. 

Art.  2790. — A  partnership  may  be  appointed  attorney  or  agent  for 
the  performance  of  any  act  or  duty,  which  comes  within  the  object  for 
which  the  partnership  is  formed,  and  the  responsibility  of  such  trust  or 
agency  attaches  to  all  the  members,  and  they  are  also  entitled  to  all  the 
advantages  resulting  therefrom ;  although  one  of  them  may  execute  the 


365  OF  PARTNERSHIP.  o65 

trust  in  tlie  name  of  the  partnersliip,  nnless  it  be  differently  provided 
in  the  appointment. 

Art.  2791. — Where  a  partnership  is  appointed  to  perform  a  trustor 
agency,  foreign  to  the  object  for  which  the  partnersliip  was  formed,  the 
appointment  is  not  void ,  it  may  be  performed  in  the  name  of  the  part- 
nership, if  all  the  partners  assent,  and  then  the  like  responsibilities  and 
advantages  attach  to  the  parties  as  are  set  forth  in  the  last  preceding 
article  ;  if  the  assent  of  all  tlie  parties  be  not  given,  the  trust  or  agency 
cannot  be  perfoi'med  under  tlie  jiower. 

Art.  2792. — If  the  trust  or  agency  is  executed  by  writing,  whether 
required  by  law  to  be  so  done  or  not^the  assent  required  by  the  last  ar- 
ticle must  also  be  in  writing. 

Art.  2793. — In  an  ordinary  partnership,  if  a  partner  having  no  au- 
thority to  make  purchases  for  the  joint  account,  shall  make  any  purchase 
in  the  name  of  the  partnership,  or  in  his  own  name  with  the  partnership 
funds,  the  other  jiartners  may  elect  whether  they  will  take  such  pur- 
chase on  the  joint  account  or  not. 

Art.  2794. — The  partnership  property  is  liable  to  the  creditors  of 
the  partnership,  in  preference  to  those  of  the  individual  partner ;  but 
the  share  of  any  partner  may,  in  due  course  of  law,  be  seized  and  sold 
to  satisfy  his  individual  creditors,  subject  to  the  debts  of  the  partner- 
ship ;  but  such  seizure,  if  legal,  operates  a.s  a  dissolution  of  the  partner- 
ship. 

12  L.  870;  13  L.  2T9;  IT  L.  599;  IS  L.  32'!,  505;  2  R.  453;  9  K.  425;  11  K.  130;  2  A.  87,  810;  3  A. 
189,319,456;  6  A.  81,  521. 


CHAPTER   11. 

RULES  RELATING  TO  THE  DIFFERENT  KINDS  OF  PARTNERSHir. 

Section  I. —  Of  the  Division  of  Partnership. 

Art.  2795. — Partnerships  are  divided,  as  to  their  object,  into  com- 
mercial partnerships  and  ordinary  partnerships. 

12  R.  182;  See  10  L.  419. 

Art.  2796. — Commercial  partnerships  are  such  as  are  forjned  : 

1.  For  the  purchase  of  any  personal  property,  and  the  sale  tliereof, 
either  in  the  same  state  or  changed  by  manufacture  ; 

2.  Fo^  buying  or  selling  an}'^  personal  property  whatever,  as  factors 
or  brokers ; 

3.  For  carrying  personal  property  for  hire,  in  ships  or  other  vessels. 

8L.496;13L.  300;]5L.154;  17  L.  599;  3  R.  130;  1  A.  146,457;  2  A.  876;  3  A.  88;  5  A.  260;  6  A, 759. 

Art.  2797. — Ordinary  partnerships  are  all  such  as  are  not  commer- 
cial ;  they  are  divided  into  universal  and  particular  partnerships. 

4  L.  106. 

Art.  2798.  Commercial  partnerships  are  divided  into  two  kinds, 
general  and  special;  they  form  the  subject  of  a  title  in  the  Commercial 
Code ;  but  the  articles  of  this  title  govern  them  in  all  points  in  which 


366  OF  PARTNERSHIP. 

there  is  no  repugnance  between  the  articles  of  this  title  and  those  con- 
tained in  the  Commercial  Code.  Where  such  repugnance  exists,  the  lat- 
ter must,  as  to  commercial  partnership,  prevail. 

Art.  2799. — There  is  also  a  species  of  partnership,  -which  may  be 
incorporated  with  either  of  the  other  kinds,  called  partnership  i?i  com- 
metidam. 

See  7  R.  471. 


Section  II. —  Of  Universal  Partnerships. 

Akt.  2800. — Universal  partnership  is  a  contract  by  which  the  par- 
ties agree  to  make  a  common  stock  of  all  the  property  they  respectively 
possess ;  they  may  extend  it  to  all  property  real  or  personal,  or  restrict 
it  to  personal  only ;  they  may,  in  other  partnerships,  agree  that  the  pro- 
perty itself  shall  be  common  stock,  or  that  the  fruits  only  shall  be  such ; 
but  property  which  may  accrue  to  one  of  the  parties,  after  entering  into 
the  partnership,  by  donation,  succession,  or  legacy,  does  not  become  com- 
mon stock,  and  any  stipulation  to  that  effect,  previous  to  the  obtaining 
the  property  aforesaid,  is  void. 

Art.  2801. — An  universal  partnership  of  profits  includes  all  the 
gains  that  may  be  made  from  whatever  source,  whether  from  property 
or  industry,  with  the  restriction  contained  in  the  last  article,  and  sub- 
ject to  all  legal  stipulations  to  be  made  by  the  parties. 

Art.  2802. — If  nothing  more  is  agreed  between  the  parties,  than 
that  there  shall  be  a  universal  partnership,  it  shall  extend  only  to  the 
profits  of  the  property  each  shall  possess,  and  of  their  credit  and  in- 
dustry. 

Art.  2803. — If  commercial  business  be  carried  on  under  an  universal 
partnership,  it  must,  as  to  that  business,  be  governed  by  the  rules  pre- 
scribed by  the  Commercial  Code. 

Art.  2804. — Universal  partnership  shall  only  be  contracted  between 
persons,  who  are  not  respectively  incapacitated  by  laAV  from  conveying 
to,  or  from  receiving  from  each  other,  to  the  injury  of  others. 

Art.  2805. — Universal  partnership  cannot  be  created  without  writ- 
ing signed  by  the  parties,  and  registered  in  the  manner  hereafter  pre- 
scribed. 

Section  III. — Of  Particular  Partnerships. 

Art.  2806. — Particular  partnerships  are  such  as  are  formed  for  any 
business  not  of  a  commercial  nature. 

17  L.  598. 

Art.  2807. — If  any  part  of  the  stock  of  this  partnership  consist  of 
real  estate,  it  must  be  in  writing,  and  made  according  to  the  rules  pre- 
scribed for  the  conveyance  of  real  estate,  and  recorded  as  is  hereafter 
prescribed  with  respect  to  partnerships  in  commendam. 

2  A.  810 ;  8  A.  464. 

Art.  2808. — The  business  of  this  partnership  must  be  conducted 
in  the  name  of  all  the  persons  concerned,  unless  a  firm  is  adopted  by 


367  OF  PARTNERSHIP.  367 

the  articles  of  partnership  reduced  to  writing,  and  recorded  in  the  man- 
ner directed  by  the  Last  article. 

Art.  2809.  If  the  articles  be  recorded,  the  parties  may  themselves 
adopt  a  firm  which  shall  be  composed  of  the  name  of  one  or  more  of 
the  partners,  but  no  other  name  than  those  of  the  parties  concerned  shall 
enter  in  such  firm. 

Section  IV. — Of  Part?tership  in  Commendam. 

Art.  2810. — Partnership  2)1  commendam  is  formed  by  a  contract, 
by  which  one  person  or  partnership  agrees  to  furnish  another  person  or 
partnership  a  certain  amount,  either  in  property  or  money,  to  be  em- 
ployed by  the  person  or  partnership  to  whom  it  is  furnished,  in  his  or 
their  own  name  or  firm,  on  condition  of  receiving  a  share  in  the  profits, 
in  the  proportion  determined  by  the  contract,  and  of  being  liable  to 
losses  and  expenses  to  the  amount  furnished,  and  no  more. 

7  R.  4T1. 

Art.  2811. — He  who  makes  this  contract,  is  called,  with  respect  to 
those  to  whom  he  makes  the  advance  of  capital,  a  partner  in  commcn- 
dam.  Every  species  of  partnership  may  receive  such  partners.  It  is 
therefore  a  modification,  of  which  the  several  kinds  of  partnerships  are 
susceptible,  rather  thau  a  separate  division  of  partnerships. 

7  R.  471. 

Art.  2812. — The  proportion  of  profits  to  be  received  by  the  partner 
%n  commendam^  may  be  regulated  by  the  covenant  of  the  parties,  as 
may  also,  with  respect  to  each  other,  the  proportion  of  losses  and  ex- 
penses to  be  borne  by  each  of  the  partners ;  but,  as  respects  third  per- 
sons, the  whole  sum  furnished,  or  agreed  to  be  furnished  by  such  part- 
ner, is  liable  for  the  debts  of  the  partnership. 

Art.  2813. — In  no  ease,  except  as  is  hereinafter  expressly  pro- 
vided, shall  the  partner,  who  has  no  other  interest  in  the  concern  than 
that  of  partner  in  commendam^  be  liable  to  pay  any  sum  beyond  that 
which  he  has  agreed  to  furnish  by  his  contract.  If  it  has  been  paid 
and  lost  in  the  business  of  the  partnership,  he  is  exonerated  from  any 
other  payment.  If  any  part  be  unpaid,  he  is  liable  for  that  amount, 
and  no  more,  to  the  creditors  of  the  partnership. 

1  A.  120, 138. 

Art.  2814. — The  partner  in  commendam  cannot  be  called  upon  by 
the  partnership  or  its  creditors  to  refund  any  dividend  he  may  have  re- 
ceived of  net  profits,  fairly  made  during  the  solvency  of  the  partners 
and  honajidc^  at  a  time  stipulated  in  the  articles  of  partnership. 

Art.  281.5. — The  partner  in  commendam  cannot  bind  the  other 
partners  by  any  act  of  his ;  he  is  not  considered  as  a  partner;  further 
than  is  specially  provided  in  this  section. 

7  R.  471. 

Art.  2816. — Partnership  in  commendam  must  be  made  in  writing, 
and  mu.st  be  recorded  in  the  manner  hereinafter  directed,  or  otherwise 
the  partner  in  commendam  will  be  considered  as  a  common  partner  in 
the  concern,  and  will  be  subject  to  all  the  responsibilities  towards  third 
persons  that  would  attach  to  any  of  the  other  partners,  in  the  busines? 
for  which  he  made  his  advance. 


368  .  OF  PARTNERSHIP. 

Art.  2817. — The  contract  must  express  the  amount  fm-nislicd,  or 
agreed  to  be  furnished,  by  the  partner  in  commoidam,  the  proportion 
of  profits  he  is  to  receive,  and  of  the  expenses  and  losses  he  is  to  bear. 
It  must  state  Avhether  it  has  been  received,  and  whether  in  goods, 
money,  or  how  otherwise ;  and  if  not  received,  it  must  contain  a  stipu- 
lation to  pay  or  deliver  it.  It  must  be  signed  by  the  parties  in  the  pre- 
sence of  one  or  more  witnesses,  and  shall  be  recorded  in  full  by  the 
officer  authorized  to  record  mortgages  in  the  place  where  the  principal 
business  of  the  partnership  is  carried  on.  If  it  be  a  commercial  part 
nership,  and  consists  of  several  houses  or  establishments,  in  different 
parts  of  the  State,  such  recording  shall  be  made  in  each  of  such  places. 

AuT.  2818. — The  record  mentioned  in  the  preceding  article  shall  be 
made  in  six  days  from  the  time  of  the  execution  of  the  contract,  in  the 
place  where  the  principal  establishment  is  situated,  and  if  there  are 
more  tlian  one,  then  allowing  one  da}--  for  every  two  leagues  distance 
between  such  principal  establishment  and  the  others. 

5  E.  172. 

Art.  2819. — The  officer,  aiithorizcd  to  record  mortgages,  shall  keep 
a  separate  book  for  the  purpose  of  recording  acts  of  partnership,  which 
shall  be,  at  all  office  hours,  open  for  the  inspection  of  any  person  who 
may  choose  to  consult  the  same,  and  shall  receive  the  same  fees  to 
which  he  is  entitled  for  the  recording  of  mortgages,  and  for  certificates 
and  copies.  When  the  act  is  under  private  signature,  the  record  shall 
be  only  made  on  the  acknowledgment  of  the  act,  before  a  judge,  a  no- 
tary, or  the  person  authorized  to  make  the  record,  or  by  proof  of  the 
execution  made  in  the  same  manner  by  one  of  the  subscribing  wit- 
nesses. 

Art.  2820. — The  business  of  the  concern,  to  which  the  partner  in 
commendam  has  contributed  his  advance,  must  not  be  carried  on  in  the 
name  of  such  partner,  or  in  his  name  jointly  with  others,  or  by  him  or 
by  his  agency  as  agent,  or  attorney  for  the  other  partners,  but  by  those 
to  whom  he  has  made  the  advance,  and  in  their  name  or  firm  ;  and  if 
the  advance  in  commendam  has  been  made  to  one  person  only,  such 
person  must  carry  on  the  business  in  his  sole  name,  and  must  not  make 
the  addition  "  and  company^''  or  adopt  any  firm  that  may  cause  it  to  be 
understood  that  he  has  any  partners.  And  if  the  partner  in  commen- 
dam shall  take  any  part  in  the  business  of  tlie  partnership,  or  permit 
his  name  to  be  used  in  the  firm,  or  knowingly  permit  any  single  person, 
to  whom  he  has  made  the  advance,  to  add  any  words  to  his  name  or 
firm,  that  may  imply  that  he  has  other  partners,  besides  the  partner  in 
commendam^  when  in  fact  he  has  none,  such  partner  in  commendam 
shall  be  liable  to  all  the  responsibilities  of  a  general  partner  in  the 
business  for  which  he  has  made  the  advance. 

5  L.  403,  40S. 

Art.  2821. — If  the  person,  to  whom  the  partner  in  commcnaam 
has  made  the  advance,  shall,  without  his  consent,  use  his  name  in  the 
firm,  or  if,  not  having  any  other  partner,  he  shall  adopt  or  use  any  such 


369  OF  PARTNERSHIP.  369 

addition  as  is  expressed  in  the  last  preceding  article,  the  partner  in  coin- 
mcndam  may  immediately  withdraw  the  sum  he  has  advanced,  and,  on 
giving  notice  in  two  of  the  public  newspapers,  shall  be  freed  from  all 
responsibility,  either  to  the  partners  or  to  third  persons,  from  the  time 
of  such  notice. 

2  R.  513. 

Art.  2822. — The  partner  in  commendam  cannot  withdraw  the 
stock  he  has  furnished  at  a  time  when  those,  to  whom  he  has  advanced 
it,  are  in  failing  circumstances,  or  when  there  is  a  reasonable  apprehen- 
sion that  they  will  become  insolvent. 

Section  V. — Of  Coinmercial  Partnerships. 

Art.  2823. — The  particular  rules,  by  which  commercial  partnerships 
are  governed,  will  be  found  in  the  Commercial  Code.  All  the  provi- 
sions of  this  title,  not  repugnant  to  those  contained  in  that  code,  are 
also  applicable  to  commercial  partnerships. 


CHAPTER   III. 

OF  THE  OBLIGATIONS  OF   FARTNERS  TOWARDS    EACH  OTHER,  AND  TOWARDS 

THIRD    FERSONS. 

Section  I. —  Of  the  Ohligations  of  Partners  towards  each  other. 

Art.  2824. — When  a  partnership  is  made  without  specifying  any 
time  for  its  commencement,  it  begins  at  the  time  the  contract  is  made. 

Art.  2825. — If  there  has  been  no  agreement  respecting  the  time 
the  partnership  is  to  last,  it  is  supposed  to  have  been  entered  into  for 
the  whole  time  of  the  life  of  the  partners,  under  the  modifications  men- 
tioned in  article  2855 ;  or  if  the  partnership  be  entered  into  for  some 
affair  the  duration  of  which  is  limited,  for  the  whole  time  such  affair  is 
to  last. 

Art.  2826. — The  contract  of  partnership  may  depend  upon  condi 
tions. 

Art.  2827. — Every  partner  owes  to  the  partnership  all  that  he  has 
promised  to  bring  into  the  same. 

When  this  proportion  consists  of  a  certain  thing,  and  the  partnership 
is  evicted  from  the  same,  such  partner  is  accountable  for  it  towards  the 
partnership,  in  the  same  manner  as  a  seller  is  answerable  to  the  pur- 
chaser who  buys  from  him. 

Art.  2828. — The  partner,  who  promised  to  bring  into  the  partner- 
ship a  certain  thing,  is  bound,  in  case  of  eviction  of  it,  in  the  same  man- 
ner as  a  seller  towards  the  purchaser  who  buys  from  him. 

Art.  2829. — The  partner,  who  promised  to  put  a  sum  of  money 
into  the  partnership,  owes  the  interest  of  the  same  from  the  day  when 
he  was  bound  to  pay  such  sum. 

In  the  same  manner  he  owes  the  interest  on  such  sums  as  he  may 
have  taken  out  of  the  funds  of  the  partnership,  from  the  day  he  has  re 
ceived  them. 

6L.  762;  2A,8T;  6  A.  170. 

24 


370  OF  PARTNERSHIP. 

Akt.  2830. — Any  partner,  who  lias  bound  himself  to  brin*,  into  tlie 
partnership  his  skill,  industry,  or  credit,  owes  the  partnership  all  the 
profits  which  he  has  made  by  the  exercise  of  such  skill,  industry,  or 
credit,  or  of  such  proportion  thereof  as  he  was  bound  to  furnish. 

Art.  2831. — When  one  of  the  partners  is,  for  his  own  particular 
account,  creditor  of  a  person,  who  is  at  the  same  time  indebted  unto  the 
partnership  for  a  debt  of  the  same  nature,  which  is  due  likewise,  the 
partner  is  bound  to  apply  what  he  receives  from  the  debtor  to  the  dis- 
charge of  what  is  due  to  the  partnership  and  to  him,  in  the  proportion 
of  both  debts,  although  by  his  receipt  he  should  have  appliedthe  whole 
sum  paid  to  what  is  due  to  him  in  particular. 

Art.  2832. — When  one  of  the  partners  has  received  his  full  share 
of  what  is  due  to  the  partnership,  if  the  debtor  has  become  insolvent 
since,  the  partner,  who  has  received  his  full  share,  is  bound  to  return 
the  same  to  the  partnership,  although  he  should  have  given  a  receipt  for 
his  own  share. 

Art.  2833. — Every  partner  is  answerable  to  the  partnership  for  the 
damages  which  it  may  have  suffered  by  his  fault,  without  being  able  to 
compensate  such  damages  by  the  profits  which  his  industr}',  skill,  or 
credit  may  have  produced  in  the  business  of  the  partnership  ;  provided 
that  no  partner  shall  be  held  liable  for  any  loss  which  has  happened  in 
consequence  of  any  thing  bona  fide  done  or  omitted  by  him  in  the  legal 
exercise  of  his  power,  either  as  administrator  or  partner,  although  such 
act  or  omission  should  be  injudicious  and  injurious  to  the  partnership. 

2  L.  2C8, 

Art.  2834. — If  the  use  only  of  certain  specified  property  has  been 
brought  into  partnership,  and  that  property  is  of  such  a  nature  that  it 
may  be  used  and  enjoyed  without  destroying  it,  the  ownership  remains 
in  the  partner  who  brought  it  in,  and  it  is  at  his  risk.  But  if  such  pro- 
perty be  destroyed,  or  grow  worse  by  keeping,  or  by  the  use  that  is 
made  of  it,  if  it  was  brought  into  partnership  with  the  intent  that  it 
should  be  sold,  or  if  it  was  taken  at  an  estimated  value,  ascertained  by 
an  inventory  or  some  other  writing,  in  either  of  these  cases,  although 
the  use  only  was  contributed,  the  property  is  at  the  risk  of  the  partner- 
ship ;  and  in  case  of  loss  or  injiiry,  the  partner  who  brought  it  in  is  a 
creditor  of  the  partnership,  to  the  amount  of  the  credit  or  loss  ;  provided 
that  all  the  pi'ovisions.of  this  article  maybe  controlled  by  the  covenants 
of  the  parties. 

C  A.  195 ;  Seo  13  L.  414. 

Art.  2835. — A  partner  may  be  a  creditor  of  the  pnrlnership,  not 
only  for  the  sums  which  he  has  disbursed,  but  likewise  for  the  obliga- 
tions he  has  entered  into  bona  fide  for  the  partnership,  and  for  losses 
reasonably  incurred  in  the  administration. 

Art.  2836. — When  the  contract  of  partnership  does  not  determine 
the  share  of  each  partner  in  the  profits  or  losses,  each  one  shall  be  en- 
titled  to  an  equal  share  of  the  profits,  and  must  contribute  equally  to 
the  losses. 

4  A.  330;  See  11  K.  349. 

Art.  2837. — If  the  partners  have  agreed  to  refer  to  one  of  them,  or 
to  a  third  person,  for  the  regulation  of  the  shares,  this  regulation  cannot 
be  annulled,  unless  it  be  by  certain  proofs  that  it  is  contrary  to  equity. 


371  OF  PARTNERSHIi.  371 

Art.  2838. — The  partner  intrusted  witli  the  administration  of  the 
affairs  of  the  partnership  by  a  special  power  given  in  writing,  either  by 
the  articles  of  partnership  or  otherwise,  may,  without  the  assent  of  the 
other  partners,  and  contrary  to  their  prohibition,  do  any  act  which  they 
have  authorized  him  to  do  by  such  power,  provided  it  be  without  fraud, 
and,  in  his  opinion,  for  the  advantage  of  the  society. 

This  power,  if  contained  in  the  articles  of  co-partnership,  cannot  be 
revoked  without  a  lawful  cause,  as  long  as  the  partnership  lasts.  But 
if  the  power  of  administering  be  given  subsequent  to  the  articles  of 
partnership,  it  is  a  simple  mandate,  and  may  be  revoked. 

Art.  2839. — When  several  partners  are  intrusted  with  the  adminis- 
tration, without  their  duties  being  pointed  out,  or  when  it  is  not 
expressed  that  one  shall  not  be  able  to  act  without  the  other,  they  may 
do  separately  all  the  acts  relating  to  such  administration. 

Art.  ^840. — If  it  has  been  stipulated  that  one  of  the  administra- 
tors shall  not  do  any  thing  without  the  other,  one  alone  cannot  act, 
even  when  the  other  is  prevented  by  sickness  or  otherwise  from  taking 
a  part  in  the  acts  which  relate  to  the  administration,  until  there  be  a 
new  agreement  between  the  partners. 

Art.  2841. — When  there  is  no  agreement  respecting  administration 
in  the  act  of  partnership,  the  following  rules  are  adhered  to : 

1.  The  partners  are  supposed  to  liave  given  reciprocally  to  each  other, 
the  power  of  administering  one  for  the  othor.  What  one  docs,  is  valid, 
even  for  the  share  of  his  partners,  without  receiving  their  approbation, 
saving  the  right  which  they,  or  every  one  of  the  partners  has  to  oppose 
the  operation,  before  it  be  concluded ; 

2.  Every  partner  may  make  use  of  the  things  belonging  to  the  part- 
nership, provided  he  employs  the  same  to  the  uses  for  which  they  are 
intended,  and  he  does  not  use  them  in  such  a  manner  as  to  prevent  his 
partners  from  using  them  according  to  their  rights,  or  against  the  in- 
terest of  the  partnership; 

S  A.  819,  323. 

3.  Every  partner  has  a  I'ight  to  bind  his  partners  to  contribute  with 
him  to  the  expenses  which  are  necessary  for  the  preservation  of  the 
things  of  the  partnership  ; 

4.  A  partner  can  neither  dispose  of  nor  make  any  change  in  any  real 
property  belonging  to  the  partnership,  without  the  consent  of  his  part- 
ners, should  even  this  disposition  or  change  be  advantageous  to  the 
partnership ; 

4  L.  306. 

5.  In  other  than  commercial  partner.ships  a  partner  cannot,  as  part- 
ner onl}^,  and  if  he  has  not  the  administration,  alienate  or  engage  the 
thing.'',  which  belong  to  the  partnership. 

4  L.  806. 

Art.  2842. — Every  partner  may,  without  the  consent  of  his  part- 
ners, cuter  into  a  partner.ship  with  a  third  person,  for  the  share  which 
he  has  in  the  partnership,  but  he  cannot,  without  the  consent  of  his 
partners,  make  him  a  partner  in  the  original  partnership,  should  ho 
even  have  the  administration  of  it. 

lie  is  responsible  for  the  damages  occasioned  by  this  third  person 
to  the  partnership,  in  tlie  same  manner  as  he  answers  for  those  he  has 
occasioned  himself,  according  to  article  2833. 


372  OF  PARTNERSHIP. 

Section  II. — Of  the  Obligations  of  Partners  towards  third  Persons. 

Art.  2813. — Ordinary  partners  arc  not  bound  in  so/ido  for  the  debts 
of  the  partnership,  and  no  one  of  them  can  bind  his  partners,  unless 
they  have  given  him  power  so  to  do,  cither  specially,  or  by  the  articles 
of  partnership. 

15  L.  427 ;  16  L.  C9, 223 ;  1  R.  62 ;  6  R.  70,  .%1 ;  12  11.  243 ;  See  U  M.  881 ;  13  L.  197. 

Art.  2844. — In  the  ordinary  partnership.  c;uh  jiartncr  is  bound  for 
his  share  of  the  partnership  debt,  caU-uhitiiig  .^^nih  !-hare  in  proportion 
to  the  number  of  the  partners,  without  any  attention  to  the  proportion  of 
the  stock  or  profits  each  is  entitled  to. 

15  L.  1.3S,  423;  16  L.  71 ;  6  R.  216 ;  12  R.  24-3 ;  2  A.  623;  See  2796  ;  Sec  11  M.  331. 

Art.  2845. — If  a  debt  be  contracted  by  one  of  the  partners  of  an 
ordinary  partnership,  who  is  not  authorized,  either  in  his  own  name  or 
that  of  the  partnership,  the  other  partners  will  be  bound,  each  for  his 
share,  provided  it  be  proved  that  the  partnership  was  benefited  by  the 
tran.saction. 

2L.  26S;  13  L.  193;  1  R.  62. 

Art.  2846. — All  engagements  made  relative  to  the  partnership  af- 
fairs, by  the  person  appointed  to  administer  the  business  of  an  ordinary 
partnership  by  articles  of  partnership  duly  recorded,  and  pursuant  to 
those  powers,  shall  bind  all  the  partners. 

4  L.  305,  30S. 

CHAPTER  IV. 

OF  THE  DIFFERENT  MANNERS  IN  WHICH  PARTNERSHIPS  END. 

Art.  2847. — A  partnership  ends  : 

1.  By  the  expiration  of  the  time  for  which  such  partnership  was 
entered  into  ; 

2.  By  the  extinction  of  the  thing,  or  the  consummation  of  the  nego- 
tiation ; 

IS  L.  605. 

3.  By  the  death  of  one  of  the  partners,  or  by  his  interdiction; 

4.  By  his  bankruptcy ; 

5.  By  the  will  of  all  the  parties,  legally  expressed,  or  by  the  will  of 
any  one  of  them,  founded  on  a  legal  cause,  and  expressed  in  the  man- 
ner directed  by  law. 

Art.  2848. — When  a  partnership  has  been  entered  into  for  a  limit- 
ed time,  it  ends  of  course  at  the  expiration  of  that  time. 

Art.  2849. — The  prorogation,  which  may  be  agreed  upon  between 
the  parties,  shall  be  made  and  proved  in  the  same  manner  as  the  con- 
tract of  partnership  itself 

Art.  2850. — If  a  partnership  has  been  entered  into,  the  ptock  of 
which  is  to  be  formed  with  the  proceeds  of  a  sale,  to  be  made  in  com- 
mon, of  several  things  belonging  to  each  partner,  and  if  it  happen  that 
the  thing  belonging  to  one  of  them  is  destroyed,  the  partnersliip  shall 
be  extinguished. 

Art.  2851. — Every  partnership  ends  of  right  by  the  death  of  one 
of  the  partners,  unless  an  agreement  has  been  made  to  the  contrary. 

12  K.  2 13. 


373  OF  PARTNERSHIP.  37S 

Art.  2852. —  The  death  of  one  partner  dissolves  the  partnership 
between  the  surviving  partners,  unless  there  be  a  contrary  stipulation. 

8  K.  44 ;  12  R.  24.3 ;  3  A.  642. 

AuT.  2853. — If  it  has  been  stipulated  that,  in  case  of  the  death  of 
one  of  the  partners,  the  partnership  should  coytinue  between  the  heir 
of  tlie  deceased  and  the  surviving  partners,  or  between  the  .surviving 
partners  only,  either  of  these  stipulations  shall  be  observed. 

But  if  the  stipulation  be,  that  the  partncrsliip  sliall  continue  be- 
tween the  survivors  only,  the  lieir  of  the  deceased  .shall  be  entitled  to  a 
division  of  the  partnership  property,  as  it  stood  at  the  day  of  tlie  death 
of  his  ancestor,  and  to  a  share  in  the  profits  of  any  partnership  operation 
in  which  his  share  of  the  stock  was  employed,  and  which  was  unfinished 
at  that  time. 

Art.  2854. — The  interdiction  of  one  of  the  partners,  or  his  bank- 
ruptcy, has,  as  to  the  dissolution  of  the  partnership,  the  same  efl'cct  as 
the  death  of  one  of  the  partners. 

Art.  2855. — If  the  partnership  has  been  contracted  without  any 
limitation  of  time,  one  of  the  partners  may  dissolve  the  partnership  by 
notifying  to  his  partners  that  he  does  not  intend  to  remain  any  longer  in 
the  partnership,  provided,  nevertheless,  the  renunciation  to  the  partner- 
ship be  made  bona  fidc^  and  it  does  not  take  place  unseasonably. 

Art.  2856. — The  renunciation  is  not  bona  fide,  when  the  partner  re- 
nounces for  the  purpose  of  appropriating  to  himself  the  profits  which  the 
partners  expected  to  receive  from  the  partner.ship. 

Art.  2857. — The  renunciation  is  made  unseasonably,  if  it  be  mode 
at  the  time  when  things  are  no  longer  entire,  and  when  the  interest  of 
the  partnership  requires  that  its  dissolution  be  postponed.  The  com- 
mon interest  of  the  partnership  is  considered,  and  not  the  interest  of  the 
partner  who  opposes  the  renunciation. 

Art.  2858. — Although  the  partner.ship  may  have  been  entered  into 
for  a  limited  time,  one  of  tlie  partners  may,  provided  he  has  a  just  cause 
for  tlie  same,  dissolve  the  partnership  before  the  time,  even  although 
inconveniences  might  result  to  the  partners,  and  althougli  it  miglit  have 
been  stipulated  that  the  partners  could  not  desist  from  the  partnership 
before  the  stipulated  time. 

18  L.  341,  345. 

Art.  2859. — There  is  just  cause  for  a  partner  to  dissolve  the  part- 
nership before  the  appointed  time,  when  one  or  more  of  the  partners  fail 
in  their  obligations,  or  when  an  habitual  infirmity  prevents  him  from 
devoting  himself  to  the  affairs  of  the  partnership,  which  recjuire  his 
presence  or  his  personal  attendance. 

Art.  2800. — The  renunciation  of  the  partnership  by  one  of  the  part- 
ners does  not  operate  the  dissolution  of  the  partnership,  unless  it  be 
notified  to  all  tiie  other  partners. 

Art.  2861. — The  rules  concerning  the  partition  of  inheritances,  the 
manner  of  making  such  partition,  and  the  obligations  which  result  from 
the  same  between  heirs,  apply  to  partners. 

13  L.  279 ;  2  A.  67. 


374  OF  LOAN. 

TITLE  XII. 

OF  LOAN. 

Art.  2862. — There  are  two  kinds  of  loans  : 

The  loan  of  things,  which  may  be  used  without  being  destroyed ; 
And  the  loan  of  things,  which  are  destroyed  by  being  used. 
The  first  kind  is  called  loan  for  use  or  commodcCtum  ; 
The  second  kind  is  called  loan  for  consumption,  or  inutuum. 
Art.  2863. — This  second  kind  is  still   subdivided  into   gratuitous 
loan,  and  loan  on  interest. 

CHAPTER  I. 

OF    THE    LOAN    FOR    USE,    OR    COMMODATUM. 

Section  I. — Of  the  Nature  of  the  Loan  for  Use. 

Art.  2864. — The  loan  for  use  is  an  agreement,  by  which  a  person 
delivers  a  thing  to  another,  to  use  it  according  to  its  natural  destination, 
or  according  to  the  agreement,  under  the  obligation,  on  the  part  of  the 
borrower,  to  return  it  after  he  shall  have  done  using  it. 

Art.  2865. — This  loan  is  essentially  gratuitous  ;  otherwise  it  would 
be  a  letting  or  hiring. 

Art.  2866. — The  lender  remains  proprietor  of  the  thing  lent. 

Art.  2867. — Every  thing  which  is  in  commerce,  and  which  is  not 
consumed  by  use,  may  be  the  object  of  this  agreement. 

Art.  2868. — The  obligations  entered  into  by  the  loan  for  use,  are 
binding  upon  the  heirs  of  the  lender  and  of  the  borrower. 

But  if  the  loan  has  only  been  made  on  account  of  the  borrower,  and 
to  him  personally,  then  his  heirs  cannot  continue  to  possess  the  thing 
lent. 

Section  II. — Of  the  Engagements  of  the  Borrower  for  Use. 

Art.  2869. — The  borrower  is  bound  to  keep  and  preserve,  in  the 
best  possible  order,  the  thing  lent.  He  can  use  it  only  in  the  manner 
for  which  it  is  fitted  by  its  nature,  or  which  is  allowed  by  the  agreement, 
under  the  penalty  of  damages. 

Art.  2870, — If  the  borrower  employs  the  thing  to  another  use,  or 
for  a  longer  time  than  has  been  agreed  on,  he  shall  be  liable  for  the 
loss  which  may  happen,  although  the  same  might  have  happened  by 
chance. 

Art.  2871 . — If  the  thing  lent  be  destroyed  by  a  chance  which  might 
have  been  prevented  by  the  borrower  in  making  use  of  his  own;  or  if, 
unable  to  preserve  both,  he  has  preferred  preserving  his  own,  he  is  an- 
swerable for  the  loss  of  the  other. 

Art.  2872. — If  the  thinj;  has  been  valued  at  the  time  of  lending  it. 


375  OF  LOAN.  375 

the  loss  which  results,  even  by  chance,  is  on  account  of  the  borrower, 
unless  there  has  been  a  contrary  agreement. 

Art.  2873. — If  the  thing  be  made  worse  by  the  effects  of  the  use 
alone  for  which  it  was  borrowed,  and  without  any  fault  on  the  part  of 
the  borrower,  he  is  not  answerable  for  the  same. 

Art.  2874. — The  borrower  is  not  at  liberty  to  keep  the  thing  as  a 
compensation  for  what  the  lender  owes  him. 

Art.  2875. — If,  in  order  to  use  the  thing,  the  borrower  be  com- 
pelled to  go  to  some  expense,  he  has  no  right  to  be  reimbursed  by  the 
lender. 

Art.  2876. — If  several  persons  have  jointly  borrowed  the  same 
object,  they  are  bound  for  it  in  soUdo  to  the  lender. 


Section  III. — Of  the  Obligations  of  tlic  Lender  for  Use. 

Art.  2877. — The  lender  cannot  take  back  the  thing  lent,  but  after 
the  time  agreed  on ;  or,  if  no  agreement  has  been  entered  into  in  that 
respect,  after  it  has  been  employed  to  the  use  for  which  it  was  borrowed. 

Art.  2878. — Nevertheless,  if,  during  the  interval,  or  before  the  bor- 
rower has  done  with  the  thing,  the  lender  be  in  an  urgent  and  unfore- 
seen need  of  this  thing,  the  judge  may,  according  to  circumstances,  com- 
pel the  borrower  to  return  it  to  him. 

Art.  2879. — If,  during  the  loan,  the  borrower  was  obliged  for  the 
preservation  of  the  thing  to  go  to  some  extraordinary  expense  necessary, 
and  so  urgent  that  he  could  not  give  notice  of  the  same  to  the  lender, 
the  lender  shall  be  bound  to  reimburse  him  for  the  same. 

Art.  2880. — When  the  thing  lent  has  defects  of  such  a  nature  that 
it  may  occasion  injury  to  the  person  who  uses  it,  the  lender  is  answer- 
able for  the  consequences,  if  he  knew  the  defects,  and  did  not  apprise 
the  borrower  of  them. 

CHAPTER  II. 

OF  THE  LOAN  FOR  CONSUMPTION,  OR  MUTUUM. 

Section  I. — Of  the  Nature  of  the  Loan  for  Consumption. 

Art.  2881. — The  loan  for  consumption  is  an  agreement  by  which 
one  person  delivers  to  another,  a  certain  quantity  of  things  which  are 
consumed  by  the  use,  under  the  obligation,  by  the  borrower,  to  return 
to  him  as  much  of  the  same  kind  and  quality. 

Art.  2882. — By  the  effect  of  this  loan  the  borrower  becomes  the 
owner  of  the  thing  lent,  and  if  it  be  destroyed,  in  whatever  manner  the 
same  may  have  happened,  the  loss  is  on  his  account. 

Art.  2883. — Any  thing  whicli  is  such,  that  it  may  bo  returned  of 
the  same  kind  and  quality,  may  be  given  as  a  loan  for  consumption ;  but 
things  which,  although  of  the  same  kind,  still  may  differ  from  each 
other  in  quality,  as  beasts  and  the  like,  cannot  be  lent  after  this  manner. 

Art.  2884. — The  obligation  which  results  from  a  loan  of  money,  can 
never  be  more  than  the  numerical  sum  mentioned  in  the  contract. 


376  OF  LOAN. 

If  there  has  been  augmentation  or  diminution  in  the  value  of  the 
specie  before  the  time  of  the  payment,  the  debtor  is  bound  to  return 
nothing  more  than  the  numerical  sum  which  was  lent  to  him,  in  such 
specie  as  has  currency  at  the  time  of  the  payment. 

Art.  2885. — The  rule  in  the  preceding  article  does  not  obtain,  if 
the  loan  has  been  nxade  in  bullion. 

Art.  288G. — If  provisions  have  been  lent,  whatever  be  the  increase 
or  diminution  of  their  price,  the  debtor  is  still  bound  to  retiurn  the 
same  quantity  and  quality,  and  he  is  bound  to  return  no  more. 


Section  II. —  Of  the  Obligations  of  the  Lender  for  Consumption. 

Art.  2887. — In  the  loan  for  consumption,  the  lender  is  subject  to 
the  responsibility  above  established  with  respect  to  the  vices  of  the 
thing  lent  for  use. 

Art.  2888. — The  lender  cannot  claim  the  thing  lent  before  the  time 
agreed  on. 

If  no  term  has  been  agreed  on  for  the  restitution,  the  judge  may 
grant  a  delay  according  to  circumstances. 

Art.  2889. — No  delay  shall  be  granted,  if  the  loan  has  been  stipu- 
lated as  exigible  at  will. 

Art.  2890. — If  it  was  agreed  only  that  the  borrower  should  pay 
when  he  could,  or  when  he  should  have  the  means  so  to  do,  he  ought  to 
be  sentenced  to  pay,  as  soon  as  he  appears  to  be  able  so  to  do. 


Section  III. —  Of  the  Engagements  of  the  Borrower  for   Consump- 
tion. 

Art.  2891. — The  borrower  is  obliged  to  restore  the  thing  lent  in 
the  same  quantity  and  condition,  and  at  the  place  and  time  agreed  on. 

If  no  spot  has  been  fixed  on  for  the  restitution,  it  must  be  made  at 
the  place  where  the  loan  was  made. 

Art.  2892. — If  it  be  impossible  for  him  to  fulfil  his  engagement,  he 
is  bound  to  pay  the  value  of  the  things  lent,  taking  into  consideration 
the  time  and  place  when  they  ought  to  have  been  returned,  according 
to  the  agreement. 

If  the  time  and  place  have  not  been  regulated,  the  payment  is  made 
according  to  the  price  which  the  thing  is  worth  at  the  time  and  place 
where  the  demand  is  made. 

4  R.  346. 

Art.  2893. — If  the  borrower  does  not  return  the  things  lent,  or 
their  value  at  the  time  appointed,  he  shall  be  bound  to  pay  interest  from 
the  time  that  a  judicial  demand  of  it  has  been  made. 

6  L.  762 ;  4  E.  846. 


377  OF  LOAN.  37; 

CHAPTER  III. 


OF    LOAN    AND    INTEREST. 

Art.  2894. — It  is  lawful  to  stipulate  interest  for  a  simple  loan, 
•whetbcr  of  money  or  other  movable  things. 

6  L.  762. 

Art.  2895. — Interest  is  either  legal  or  conventional. 

19  L.  461. 

Legal  interest  is  fixed  at  the  following  rates,  to  wit : 
At  five  per  cent,  on  all  sums  which  are  the  object  of  a  judicial  de- 
mand, whence  this  is  called  judicial  interest ; 

2  R.  161?,  171  ;  3  A.  157,  697 ;  See  2  L.  62 ;  10  R.  174. 

And  on  sums  discounted  by  banks,  at  the  rate  established  by  their 
charters. 

2L.  60;  10  E.  174. 

The  amount  of  the  conventional  interest  cannot  exceed  ten  per  cent. 
The  same  must  be  fixed  in  writing ;  and  testimonial  proof  of  it  is  not 
admitted  in  any  case. 

7  L.  520 ;  13 L.  101 ;  1  A.  26.');  See  12  M.  21;  7  L.  10.5;  3  R.  251 ;  8R.  4S8;  10  R  118-  2  A  S76-  5  A. 
50S;  See  also  6  R.  216;  4  A.  78;  9  R.  194;  12  R.  173,  See  1925.   '    "   ' 

Stat.  m.h  February,  1844,  p.  15.—^  1.  That  article  two  thousand 
eight  hundred  and  ninety-five  of  the  Civil  Code  of  Louisiana,  be  so 
amended  that  the  amount  of  conventional  interest  shall  in  no  case  exceed 
eight  per  cent.,  under  pain  of  forfeiture  of  the  entire  interest  so  con- 
tracted. 

^  2.  If  any  person  hereafter  shall  pay  on  any  contract  entered  into 
after  the  passage  of  this  act,  a  higher  rate  of  interest  than  the  above, 
as  discount  or  otherwise,  the  same  may  be  sued  for  and  recovered  within 
twelve  months  from  the  time  of  sucli  payment. 

Art.  2896. — The  release  of  the  principal,  without  any  reserve  as  to 
interest,  raises  the  presumption  that  it  also  has  been  paid,  and  operates 
a  release  of  it. 


378  OF  DEPOSIT  AND  SEQUESTRATION. 

TITLE  XIII. 

OF  DEPOSIT  AND  SEQUESTRATION. 
CHAPTER  I. 

OF    DEPOSIT    IN    GENERAL,    AND    OF    ITS    DIVERS    KINDS. 

Art.  2S97. — A  deposit,  in  general,  is  an  act  bj  which  a  person  ro- 

ceives  the  property  of  another,  binding  himself  to  preserve  it  and  return 

it  in  kind. 

1  K.  21. 

Art.  2898. — There  are  two  species  of  deposit : 
That  properly  so  called,  and  sequestration. 

See  293-t. 

CHAPTEll  IT. 

OF    THE    DEFOSIT    FROrERLV    SO    CALLED. 

Section  I. — Of  the  Nature  and  Essence  of  the   Contract  of  Deposit. 

Art.  2899. — The  object  of  a  deposit  must  be  properly  some  movable 
thing,  but  slaves  also  may  be  deposited. 

6  A.  362. 

Art.  2900. — It  is  essentially  gratuitous.  If  the  person,  with 
whom  the  deposit  is  made,  receive  a  compensation,  it  is  no  longer  a  de- 
posit, but  a  hiring. 

Art.  2901. — The  deposit  is  perfected  only  by  the  delivery,  real  or 
fictitious,  of  the  thing  deposited. 

The  fictitious  delivery  is  sufficient,  when  the  depositary  is  already 
possessed,  in  some  other  right,  of  the  thing  agreed  to  be  left  in  deposit 
with  him. 

Art.  2902. — The  deposit  is  voluntary  or  necessary. 

Section  II. — Of  Yohintary  Deposit. 

Art.  2903. — The  voluntary  deposit  takes  place  by  the  mutual  con. 
sent  of  the  person  making  the  deposit  and  the  person  receiving  it. 

Art.  2904. — The  voluntary  deposit  can  only  be  regularly  made  by 
the  owner  of  the  thing  deposited,  or  with  his  consent,  expressed  or  im- 
plied. 

Consent  is  implied,  when  the  owner  has  carried  or  sent  the  thing  to 
the  depositary,  and  the  latter,  knowing  that  the  thing  had  been  sent,  has 
not  refused  to  receive  it. 

Art.  2905. — The  owner,  without  whose  knowledge  the  deposit  has 
been  made,  may  reclaim  his  property  in  the  hands  of  the  depositary,  who 


379  OF  DEPOSIT  AND  SEQUESTRATION.  379 

cannot  refuse  to  deliver  it,  but  must  call  in  the  person  who  made  the 
deposit,  that  he  may  oppose  the  restitution. 

Art.  2906. — The  voluntary  deposit  can  only  take  place  between  per- 
sons capable  of  contracting. 

Nevertheless,  if  a  person  capable  of  contracting  accept  a  deposit 
from  a  person  who  is  incapable,  he  incurs  all  the  obligations  of  a  real 
depositary,  and  may  be  sued  by  the  tutor  or  curator  of  the  person  who 
has  made  the  deposit. 

Art.  2907. — If  the  deposit  was  made  by  a  person  capable  of  con- 
tracting, to  another  person  not  having  that  capacity,  he  who  has  made 
the  deposit  has  only  an  action  of  claim  for  the  thing,  as  long  as  it  re- 
mains in  the  hands  of  the  depositai-y,  or  an  action  of  restitution  for  the 
amount  of  the  benefit  the  depositary  has  derived  from  it. 


Section  III. — Of  the  Obligations  of  the  Depositai^y. 

AuT"  2908. — The  depositary  is  bound  to  use  the  same  diligence  in 
preserving  the  deposit,  that  he  uses  in  preserving  his  own  property. 

17  L.  5S2 ;  See  17  L.  570. 

Art.  2909. — The  provision  in  the  preceding  article  is  to  be  rigor- 
ously enforced  : 

1.  Where  the  deposit  has  been  made  by  the  request  of  the  deposit- 
ary ; 

2.  If  it  has  been  agreed  that  he  shall  have  a  reward  for  preserving 
the  deposit ; 

3.  If  the  deposit  was  made  solely  for  his  advantage  ; 

4.  If  it  has  been  expressly  agreed  that  the  depositary  should  be  an- 
swerable for  all  neglects. 

Art.  2910. — The  depositary  is  not  answerable,  in  any  case,  for  acci- 
dents produced  by  overpowering  force,  unless  he  has  delayed  improperly 
to  restore  the  deposit. 

Art.  291 1. — The  depositary  cannot  make  use  of  the  thing  deposited 
without  the  express  or  implied  permission  of  the  depositor. 

Art.  2912. — If  the  thing  be  of  the  nature  of  those  which  are  con- 
sumed by  use,  and  the  depositor  has  given  permission  to  tlie  depositary 
to  use  them,  the  contract  is  no  longer  a  deposit,  but  a  loan  for  consump- 
tion, and  becomes  subject  to  the  rules  which  govern  that  contract. 

Art.  2913. — If  the  things  deposited  be  slaves  or  animals,  the  de- 
positary may  employ  them  for  the  benefit  of  the  depositor,  unless  the 
latter  has  directed  otherwise. 

Art.  2914. — The  depositary  should  not  seek  to  know  what  are  the 
things  confided  to  him,  if  they  were  shut  up  in  a  box,  or  in  a  sealed 
cover. 

Art.  2915. — The  depositary  ought  to  restore  the  precise  object 
which  he  received. 

Thus  a  deposit  of  coined  money  must  be  restored  in  the  same  specie 
in  which  it  was  made,  whether  it  has  sustained  an  increase  or  diminution 
of  value. 

17  L.  581;  1  R.2]. 

Art.  2916. — The  depositary  is  only  bound  to  restore  the  thine  in 


380  OF  DEPOSIT  AND  SEQUESTRATION. 

the  state  in  which  it  is  at  the  moment  of  restitution.  Deteriorations 
not  effected  by  any  act  of  his,  are  to  the  loss  of  the  depositor. 

Art.  2917. — A  depositary,  from  whom  the  thing  deposited  has  been 
taken  away  by  force,  and  who  has  received  a  price,  or  any  thing  in  its 
stead,  must  restore  what  he  has  received  in  exchange. 

Art.  2918. — The  heirs  of  a  depositary,  who  has  sold  bona  fide  a 
thing,  which  he  knew  not  to  be  a  deposit,  is  bound  only  to  restore  the 
price  which  ho  has  received,  or  to  make  over  his  claim  against  the  pur- 
chaser, if  the  price  be  not  paid. 

AitT.  2919. — If  the  thing  deposited  has  been  productiA'c,  and  the 
proceeds  have  been  received  by  the  depositary,  he  is  bound  to  restore 
them.  He  owes  no  interest  for  the  money  deposited  in  his  hands,  ex- 
cept from  the  day  on  which  he  became  a  defaulter,  by  delaying  to  restore  it. 

6  L.  762. 

Art.  2920. — The  depositary  must  restore  the  thing  deposited  only 
to  him  who  delivered  it,  or  in  whose  name  the  deposit  was  made,  or  who 
was  pointed  out  to  receive  it. 

Art.  2921. — He  cannot  require  him  who  made  the  deposit,  to 
prove  that  he  was  the  owner  of  the  thing.  Yet  if  he  discovers  that  the 
thing  was  stolen,  and  who  the  owner  of  it  is,  he  must  give  him  notice 
of  the  deposit,  requiring  him  to  claim  within  due  time.  If  the  owner, 
having  received  due  notice,  neglects  to  claim  the  deposit,  the  depositary 
is  fully  exonerated  on  returning  it  to  the  person  from  whom  he  received 
it. 

Art.  2922. — If  the  person  who  made  the  deposit  be  deceased,  the 
thing  deposited  can  be  restored  properly  to  his  heir  ;  if  there  be  several 
heirs,  it  must  be  delivered  to  each  of  them  for  his  respective  part  and 
portion,  unless  the  thing  deposited  be  indivisible,  in  which  case  they 
must  agree  among  themselves. 

If  the  depositor  has  changed  condition,  as  if  a  woman  marries,  or  a 
person  of  full  age  falls  under  interdiction,  the  deposit  can  be  restored 
only  to  the  person  who  has  the  administration  of  the  rights  and  proper- 
ty of  the  depositor. 

Art.  2923. — If  the  deposit  has  been  made  by  a  tutor,  a  husband,  or 
by  any  other  administrator,  it  can  be  restored,  after  the  function  of 
that  administrator  has  ceased,  only  to  him  whom  he  represented. 

1  li.  21. 

Art.  2924. — When  the  contract  specifies  a  place  where  the  deposit 
is  to  be  restored,  it  must  be  delivered  at  that  place,  but  the  expense  of 
conveyance  to  the  place  of  delivery  must  be  borne  by  the  depositor. 

Art.  2925. — If  the  contract  does  not  specify  the  place  where  the 
deposit  must  be  restored,  it  shall  be  restored  at  the  place  where  such 
deposit  has  been  made. 

Art.  2926. — The  deposit  nmst  be  restored  to  the  depositor  as  soon 
as  he  demands  it,  even  though  the  contract  may  have  specified  the  time 
for  its  being  restored,  unless  there  be,  in  the  hands  of  the  depositary,  an 
attachment  on  the  property,  or  an  opposition  made  on  the  owner. 

6  L.  32 ;  2  A.  55S,  5S6. 

Art.  2927. — The  depositary  cannot  witlihold  the  thing  deposited 
on  pretence  of  a  debt  due  to  him  from  the  depositor  on  any  account  dis- 
tinct from  the  deposit,  o"  by  way  of  off-set. 


381  OF  DEPOSIT  AND  SEQUESTRATION.  381 

But  he  may  retain  tlie  deposit  until  his  advances  are  repaid,  as  well 
as  any  other  claims  which  he  may  have,  arising  from  the  deposit. 

2  A.  24 ;  6  A.  46. 

Art.  2928. — When  several  persons  have  received  the  same  object 
in  deposit,  each  of  them  is  bound  to  restore  the  whole. 

Art.  2929. — The  unfaithful  depositary  is  not  admitted  to  the  bene- 
fit of  a  surrender. 

Art.  2930. — All  the  obligations  of  the  depositary  cease  on  his 
discovering  and  proving  that  he  himself  is  the  owner  of  the  thing  de- 
posited. 


Section  IV. —  Of  the  OhJigatAons  and  Rights  of  Jiim  by  ivhom  the  De- 
posit  has  been  made. 

Art.  2931. — lie  who  has  made  a  deposit  is  bound  to  reimburse  the 
depositary  the  money  he  has  advanced  for  the  safe  keeping  of  the  thing, 
and  to  indemnify  him  for  all  that  the  deposit  has  cost  him. 

He  is  to  indemnify  the  depositai'y  for  the  losses  which  the  thing  de- 
posited may  have  occasioned  him. 

Art.  2932. — The  depositor  has  a  right  to  reclaim  the  thing  dejiosit- 
ed,  when  it  exists  in  kind  in  the  hands  of  the  depositary  or  his  assigns. 

Art.  2933. — If  the  depositary  or  his  assigns  have  disposed  of  the 
thing,  and  the  price  remains  due,  the  depositor  has  a  right  to  it  in  pre- 
ference to  any  other  creditor  of  the  depositary. 

1  E.  21. 

Art.  2934. — The  distinction  formerly  established  by  law  between 
the  perfect  and  the  imperfect  deposit,  is  abolished. 

The  only  real  deposit  is  that,  where  the  depositary  receives  a  thing 
to  be  preserved  in  kind,  without  the  power  of  using  it,  and  on  the  con- 
dition that  he  is  to  restore  the,  identical  object. 

2  A.  24 ;  See  2S9S. 


CHAPTER  III. 

OF   THE  NECESSARY  DEPOSIT. 

Art.  2935. — The  necessary  deposit  is  that  which  has  been  compel- 
led by  some  accident,  such  as  fire,  falling  down  of  a  house,  pillage,  ship- 
wreck, or  other  casualty. 

The  deposition  on  oath,  or  affirmation  of  a  single  competent  or  cre- 
dible witness,  may  be  sufficient  to  prove  a  necessary  deposit,  even  when 
the  amount  of  the  thing  deposited  exceeds  five  hundred  dollars. 

Art.  2936. — An  innkeeper  is  responsible  as  depositary,  for  the 
cff'ects  brought  by  travellers  who  lodge  at  his  house;  the  deposit  of 
such  effects  is  considered  as  a  necessary  deposit. 

Art.  2937. — An  innkeeper  is  responsible  for  the  effects  brought  by 
travellers,  even  though  they  were  not  delivered  into  his  per.sonal  care, 
provided  however,  they  were  delivered  to  a  servant  or  person  in  his  em- 
ployment. 


382  OF  DEPOSIT  AND  SEQUESTRATION. 

Art.  2938. — lie  is  responsible,  if  any  of  the  eflFects  be  stolen  ot 
damaged,  either  by  his  servants  or  agents,  or  by  strangers  going  and 
coming  in  the  inn. 

1  R.  410. 

Art.  2939. — He  is  not  responsible  for  what  is  stolen  by  force  and 
arms,  or  with  exterior  breaking  open  of  doors,  or  by  any  other  extraor- 
dinary violence. 

1  R.  410. 

Art.  2940. — The  deposition  on  oath  or  affirmation  of  a  single  com- 
petent and  credible  witness  as  to  the  deposit  at  inns,  may  be  admitted 
as  a  good  proof,  even  when  the  value  of  the  thing  so  deposited  exceeds 
five  hundred  dollars;  but  the  judge  must  admit  this  kind  of  proof,  in 
that  case,  with  circumspection,  according  to  the  circumstances  of  the 
fact,  and  the  condition  of  the  parties. 


CHAPTER  IV. 

OF  SEQUESTRATION. 

Section  I. —  Of  its  different  Species. 

Art.  2941. — Sequestration  is  either  conventional  or  ordered  by  the 
judge. 

Section  II. — Of  the  Conventional  Sequestration. 

Art.  2942. — Sequestration  is  a  kind  of  deposit,  which  two  or 
more  persons,  engaged  in  litigation  about  any  thing,  make  of  the  thing 
in  contest  to  an  indifferent  person,  who  binds  himself  to  restore  it,  Avhen 
the  issue  is  decided,  to  the  party  to  whom  it  is  adjudged  to  belong. 

The  depositary  in  this  case  is  called  the  sequestrator. 

1  A.222;  2  A.CGG;  SeolM.  T9;  6N.  S.  4T3;  6L.  542;  19  L.  91 ;  2  K.  150. 

Art.  2943. — A  sequestration  may  be  not  gratuitous,  and  then  it  is 
rather  a  contract  of  hiring  than  of  deposit. 

Art.  2944. — When  it  is  gratuitous,  it  is  a  real  contract  of  deposit, 
subject  to  all  the  rules  which  apply  to  that  contract,  save  the  differences 
hereafter  explained. 

Art.  2945. — A  sequestration  has  this  difference  from  a  deposit,  that 
it  may  have  for  its  object,  not  only  movables  and  slaves,  but  also  real 
property. 

Art.  2946. — The  depositary,  under  this  title,  is  not  to  restore  the 
thing  deposited,  till  after  the  decision  of  the  suit,  and  then  he  must  re- 
store it  to  the  party  to  whom  it  is  adjudged. 

17  L.  24,"  581. 

Art.  2947. — He  cannot  even  till  then  exonerate  himself  from  the 
care  of  the  thing  sequestered  in  his  hands,  unless  for  some  cause  render- 
ing it  indispensable  that  he  resign  his  trust. 

In  that  case  he  can  deliver  up  the  thing  only  to  a  person  agreed  upon 
by  the  parties  concerned ;  and  in  case  they  do  not  agree,  he  must  cite 
them  to  have  a  new  sequestrator  appointed. 


383  OF  ALEATORY  CONTRACTS.  383 

Section  III. — Of  the  Judicial  Sequestration  or  Deposit. 

Art.  2948. — The  judicial  deposit  is  that  which  is  made  in  conse- 
quence of  an  order  or  judgment  rendered  by  a  judge  in  the  cases  provided 
for  the  laws  regulating  judicial  proceedings. 

1  A.  222 ;  2  A.  GG6. 

Art.  2949.— The  appointment  of  a  judicial  guardian  produces,  be- 
tween the  person  seizing  and  the  guardian,  reciprocal  obligations.  The 
guardian  must  use,  for  the  preservation  of  the  effects  seized,  the  care  of 
a  prudent  father  of  a  family ;  he  must  produce  them  either  for  the  dis- 
charge of  the  person  who  has  seized  them  for  sale,  or  to  tlie  person 
against  whom  the  execution  was  levied,  in  case  the  seizure  be  raised. 

The  obligation  of  the  party  that  has  seized  the  property,  consists  in 
paying  the  guardian  his  legal  fees. 

IT  L.  24,  5T8,  5S2;  7  R.  82 ;  10  E.  14T. 

Art.  2950. — The  judicial  sequestration  is  confided  to  the  public  of- 
ficer whom  the  law  provides  to  execute  the  orders  of  the  judge. 

This  officer  is  subject  to  all  the  obligations  imposed  in  the  case  of 
conventional  sequestration. 

17L.24. 


TITLE  XIV. 

OF  ALEATORY  CONTRACTS. 


Art.  2951. — The  aleatory  contract  is  a  mutual  agreement,  of  which 
the  effects,  with  respect  both  to  the  advantages  and  losses,  whether  to  all 
the  parties  or  to  one  or  more  of  them,  depend  on  an  uncertain  event. 

Art.  2952.-  -The  law  grants  no  action  for  the  payment  of  what  has 
beeii  won  at  gaming  or  by  a  bet,  except  for  games  tending  to  promote 
skill  in  the  use  of  arms,  sucli  as  the  exercise  of  gun,  foot,  horse,  and 
chariot  racing. 

And  as  to  such  games,  the  judge  may  reject  the  demand,  wlicn  the 
sum  appears  to  him  excessive. 

Art.  2953. — In  all  cases  in  which  the  law  refuses  an  action  to  tho 
winner,  it  also  refuses  to  suffer  the  loser  to  reclaim  what  he  has  volun- 
tarily paid,  unless  there  have  been,  on  the  part  of  the  winner,  fraud,  de- 
ceit, or  swindling. 

8ee4N.  8,  84;  1  A.  176. 


384  OF  MANDATR 

TITLE  XV. 

OF    il  A  X  D  A  T  E  . 
CHAPTER  I. 

OF  THE  NATURE  AND  FORM  OF  MANDATES. 

Art.  2954. — A  procuration  or  letter  of  attorney  is  an  act  by  which 
one  pcr.son  gives  power  to  another  to  transact  for  him  and  in  his  name, 
one  or  several  affairs. 

Art.  2955. — The  mandate  may  take  place  in  five  different  manners  : 
for  the  interest  of  the  person  granting  it  alone ;  for  tlic  joint  interest  of 
both  parties;  for  the  interest  of  a  third  person ;  for  the  interest  of  such 
third  person  and  that  of  the  part}'^  granting  it;  and  finally,  for  the  inter- 
est of  the  mandatary  and  a  third  person. 

Art.  295G. — The  object  of  the  mandate  must  be  lawful,  and  the 
power  conferred  must  be  one  which  the  principal  himself  has  a  right  to 
exercise. 

Art.  2957. — The  contract  of  mandate  is  completed  only  by  the  ac- 
ceptance of  the  mandatary. 

Art.  2958. — A  power  of  attorney  may  be  accepted  expressly  in  the 
act  itself,  or  by  a  posterior  act. 

19  L.  225. 

It  may  also  be  accepted  tacitly ;  and  this  tacit  acceptance  is  inferred, 
either  from  the  mandatary  acting  under  it,  or  from  his  keeping  silence 
when  the  act  containing  his  appointment,  is  transmitted  to  him. 

11  L.  2S8,  294. 

Art.  2959. — If  the  proxy  or  attorney  in  fact  pleads  tliat  he  has  not 
accepted  or  acted  under  the  power,  it  is  incumbent  on  the  principal  to 
prove  he  has. 

Art.  2960. — The  procuration  is  gratuitous  unless  there  have  been  a 
contrary  agreement. 

10  L.  603. 

Art.  290 1. — A  power  of  attorney  may  be  given,  either  by  a  public 
act  or  by  a  writing  under  private  signature,  even  by  letter. 

It  may  also  be  given  verbally,  but  of  thi.s  testimonial  proof  is  ad- 
mitted only  conformably  to  the  title  of  conventional  obligations. 

4  L.  1C9 ;  Seo  2  L.  696 ;  8  R.  2;36 ;  1  A.  72. 

Art.  29G2. — A  blank  may  be  left  for  the  name  of  the  attorney  in 
fact  in  the  letter  of  attorney. 

In  that  case,  the  bearer  of  it  is  deemed  the  person  empowered. 

Art.  29G3. — It  may  be  either  general  for  all  affairs,  or  special  for 
one  affair  alone. 

Art.  2964. — It  may  vest  an  indefinite  power  to  do  whatever  may 
appear  conducive  to  the  interest  of  the  principal,  or  it  may  restrict  the 
power  given  to  the  doing  of  what  is  specified  in  the  procuration. 

Art.  2965. — A  mandate,  conceived  in  general  terms,  confers  only  a 
power  of  administration. 

lOM.  CT9;10K.  43;  12  K.  653. 


385  OF  MANDATE.  335 

If  it  be  necessary  to  alienate  or  give  a  mortgage,  or  do  any  other  act 
of  ownership,  the  power  must  be  express. 

Stat.  ISth  April,  1853,  No.  126,  p.  89.— It  sliall  be  lawful  for  any 
married  woman  having  a  mortgage  or  privilege  on  the  property  of  her 
husband,  to  appoint  one  or  more  agents  w'ith  power  in  her  behalf,  during 
her  temporary  or  permanent  absence  from  the  State,  to  intervene  in  any 
contract  of  mortgage  or  sale,  made  by  the  husband,  and  sign  in  her  be- 
half such  renunciation  of  said  mortgage  or  privilege,  as  the  wife  herself 
might  do,  if  personally  present,  and  the  said  power  may  be  cither  gene- 
ral or  special,  and  may  be  executed  in  the  United  States,  before  any 
judge  or  justice  of  the  peace,  or  notary,  or  commissioner  of  this  State, 
and  in  foreign  countries  before  any  consul,  vice  consul,  or  consular  or 
commercial  agent  of  the  United  States. 

6E.  142;  2A.  S90;4A.  229. 

Art.  2966. — Thus  the  power  must  be  express  and  special  for  the 
following  purposes : 
To  sell  or  to  buy ; 

iOM.  679;  7N.  S.  244;  1  K.  303;  1  A.  72;   4  A.  220  ;    CA.52S;   See  2  L.  596;    CL.  591;  Sn.  236, 

See  2415. 

To  encumber  or  hypothecate ; 

10  R.  43,  61. 

To  accept  or  reject  a  succession ; 

To  contract  a  loan  or  acknowledge  a  debt. 

3  L.  199  ;  4  L.  310 ;  9  R.  293 ;  12  E.  221, 653. 

To  draw  or  indorse  bills  of  exchange  or  promissory  notes  ; 

1  R.  303 ;  6  K.  13 ;  1  A.  457 ;  2  A.  353,  294,  772 ,  See  1  N.  S.  608 ;  6  L.  590. 

To  compromise  or  refer  a  matter  to  arbitration ; 

2N.  S.  292;  ICL.  51,  54;  2  R.  1. 

To  make  a  transaction  in  matters  of  litigation  ;  and  in  general  where 
things  to  be  done  are  not  merely  acts  of  administration,  or  such  as  fa- 
cilitate such  acts ; 

8L.  569;  13L.  4S4;  17^4.5;  2  A.  890;  See  4  T.  32  ;  IS  L.  332;  2  R.  513;  5R.  172;  6  11.70,127.255: 
8  K.  236;  12  R.  221,  243;  11  R.  95,  497;  2  A.  772;  5  A.  700. 

Art.  2967. — A  power  to  compromise  on  a  matter  in  litigation  does 
not  include  that  of  submitting  or  referring  to  arbitrators. 

5  N.  8.  669. 

Art.  2908. — A  power  to  receive  includes  that  of  giving  a  receipt  fa 
acquittance. 

Art.  29G9. — Powers  granted  to  persons  who  exercise  a  profession, 
or  fulfil  certain  functions,  of  doing  any  business  in  the  ordinary  course 
of  affairs  to  which  they  are  devoted,  need  not  be  specified,  but  are  in- 
ferred from  the  functions  which  these  mandataries  exercise. 

Art.  2970. — Women  and  emancipated  minors  may  be  appointed  at- 
torneys;  but,  in  the  case  of  a  minor,  the  person  appointing  him  has  no 
action  against  him,  except  according  to  the  general  rules  relative  to  the 
obligations  of  minors;  and  in  the  case  of  a  married  woman,  who  has  ac- 
cepted the  power  without  authority  from  her  husband,  she  can  only  be 
sued  in  the  manner  specified  under  the  title  of  marriage  contract  and 
the  respective  rights  of  married  persons. 
25 


586  OF  MANDATE. 


CHAPTER  11. 

OF    THE    OBLIGATIONS    OF    A    PERSON    ACTING    UNDER    A    TOWER    OF 
ATTORNEY. 

Art.  2971. — The  attorney  in  fact  is  bound  to  discliarge  the  functions 
of  the  procuration,  as  long  as  he  continues  to  hold  it,  and  is  responsible 
to  his  principal  for  the  damages  that  may  result  from  the  non-perform- 
ance of  his  duty. 

He  is  bound  even  to  complete  a  thing  which  had  been  commenced  at 
the  time  of  the  principal's  death,  if  any  danger  result  from  delay. 

9  R.  39G ;  10  R.  4S1  ;  11  R.  81 ;  12  K.  423 ;  See  2'.t72. 

Art.  2972. — The  attorney  is  responsible,  not  only  for  unfaithfulness 
in  his  management,  but  also  for  his  tault  or  neglect. 

Nevertheless,  the  responsibility  with  respect  to  faults,  is  enforced 
less  rigorously  against  the  mandatary  acting  gratuitously,  than  against 
him  who  receives  a  reward. 

7  M.  4<U;  1  N.  S.  30";  4  L  28;  17  L.  417 ;  11  R.  81 ;  12  R.  423;  See  9  R.  396. 

Art.  2973. — He  is  obliged  to  render  an  account  of  his  management, 
unless  this  obligation  has  been  expressly  dispensed  with  in  his  favor. 

10  R.  481 ;  11  R.  81. 

Art.  2974. — He  is  bound  to  restore  to  his  principal  whatever  he  has 
received  by  virtue  of  his  procuration,  even  should  he  have  received  it 
unduly. 

10  R.  431 ;  4  A.  414. 

Art.  2975. — In  case  of  an  indefinite  power,  the  attorney  cannot  be 
.sued  for  what  he  has  done  with  good  intention. 

The  judge  must  have  regard  to  the  nature  of  the  aflfair,  and  tlie  dif- 
ficulty of  communication  between  the  principal  and  the  attorney. 

16  L.  61 ;  SCO  3  A.  46'-;. 

Art.  2970. — The  attorney  is  answerable  for  the  person  substituted 
by  him  to  manage  in  his  stead,  if  the  procuration  did  not  empower  him 
to  substitute. 

Art.  2977. — He  is  also  answerable  for  his  substitute,  if,  having  the 
power  to  appoint  one,  and  the  person  to  be  appointed  not  being  named 
in  the  procuration,  he  has  appointed  for  his  substitute  a  person  notori- 
ously incapable,  or  of  suspicious  character. 

•  Art.  2978. — Even  where  the  attorney  is  answerable  for  his  substi- 
tute, the  principal  may,  if  he  thinks  proper,  act  directly  against  the  sub- 
stitute. 

See  7  L.  130. 

Art.  2979. — The  attorney  cannot  go  beyond  the  limits  of  his  pro- 
curation ;  whatever  he  does  in  exceeding  his  power  is  null  and  void  with 
regard  to  the  principal,  unless  ratified  by  the  latter,  and  the  attorney 
is  alone  bound  by  it  in  liis  individual  capacity'. 

1  A.  72  ;  3  A.  463. 

Art.  2980. — The  mandatary  is  not  considered  to  have  exceeded  his 
authority,  when  he  has  fulfilled  the  trust  confided  to  him,  in  a  manner 
more  advantageous  to  the  principal,  than  that  expressed  in  his  appoint- 
ment. 

7L.  130;  1  A.  72. 


387  OF  MANDATE.  387 

Art.  2981. — The  mandatary,  who  has  communicated  his  authority 
to  a  person  with  whom  he  contracts  in  that  capacity,  is  not  answerable 
to  the  latter  for  any  thing  done  beyond  it,  unless  he  has  entered  into  a 
personal  guarantee. 

8  M.  G42  ;  4  N.  S.  308 ;  1  L.  198 ;  5  L.  334 ;  G  L.  702 ;  10  L.  390 ;  11  L.  13 ;  13  L.  21 ;  3  R.  878. 

Art.  2982. — The  mandatary  is  responsible  to  those  witli  whom  he 
contracts,  only  when  he  has  bound  himself  personally,  or  when  he  has 
exceeded  his  authority  without  having  exhibited  his  powers. 

5L.  833;  Sec  2981. 

Art.  2983. — When  there  are  several  attorneys  in  fact  empowered  by 
the  same  act,  they  are  not  responsible  jointly  and  severally  in  solido  to 
OYte  another,  for  the  acts  of  each,  unless  such  responsibility  be  expressed 
in  the  procuration. 

3  L.  596. 

Art.  2984. — The  attorney  is  answerable  for  the  interest  of  any  sum 
of  money  he  has  employed  to  his  own  use,  from  the  time  he  has  so  em- 
ployed it ;  and  for  that  of  any  sum  remaining  in  his  hands,  from  the  day 
he  becomes  a  defaulter  by  delaying  to  pay  it  over. 

8  R.  13;  2  A.  87,  281 ;  4  A.  414, 490 ;  6  A.  170 ;  Seo  19  L.  430. 


CHAPTER  III. 

OF    THE    MANDATARY    OR    AGENT    OF    COTII    PARTIES. 

Art.  2985. — The  broker  or  intermediary  is  he  who  is  employed  to 
negotiate  a  matter  between  two  parties,  and  who,  for  that  reason,  is  con- 
sidered as  the  mandatary  of  both. 

6  L.  417,  G93. 

Art.  2986. — The  obligations  of  a  broker  are  similar  to  those  of  an 
ordinary  mandatary,  with  this  difference,  that  his  engagement  is  double, 
and  requires  that  he  should  observe  the  same  fidelity  towards  all  parties, 
and  not  favor  one  more  than  another. 

5  L.  .3.35 ;  G  L.  407,  417. 

Art.  2987. — Brokers  are  not  responsible  for  events  which  arise  in 
the  affairs  in  which  they  arc  employed ;  they  are  only,  as  other  agents, 
answerable  for  fraud  or  faults. 

See  1  N.  8.  219. 

Art.  2988. — Brokers,  except  in  case  of  fraud,  are  not  answerable  for 
the  insolvency  of  those  to  whom  they  procure  sales  or  loans  although  they 
receive  a  reward  of  their  agency,  and  speak  in  favor  of  him  who  buys  or 
borrows. 

6  L.  417. 

Art.  2989. — Commercial  and  money  brokers,  besides  the  obligations, 
which  they  incur  in  common  with  other  agents,  have  their  duties  pro- 
scribed by  the  laws  regulating  commerce. 


388  OF  MANDATE. 

CHAPTER  IV. 

OF  THE  OBLIGATION  OF  THE  PRINCIPAL  WHO  ACTS  BY  HIS  ATTORNEY  IN  FACT 

AuT.  2990. — The  principal  is  bound  to  execute  tlie  engagements 
contracted  by  the  attorney,  conformably  to  the  power  confided  to  him. 

For  any  thing  further  he  is  not  bound,  except  in  so  far  as  he  has 
expressly  ratified  it. 

6  A.  3SS. 

Art.  2991. — The  principal  ought  to  reimburse  the  expenses  and 
charges,  wbich  the  agent  has  incurred  in  the  execution  of  the  mandate, 
and  pay  his  commission  -wliore  one  has  been  stipulated. 

If  there  be  no  fault  imputable  to  the  agent,  the  principal  cannot  dis- 
pense with  this  reimbursement  and  payment,  even  if  the  affair  has  not 
succeeded  ;  nor  can  he  reduce  the  amount  of  reimbursement,  under  pre- 
tence that  the  charges  and  expenses  ought  to  have  been  less. 

Art.  2992. — The  mandatary  has  a  right  to  retain,  out  of  the  pro- 
perty of  the  principal  in  his  hands,  a  sufiicicnt  amount  to  satisfy  his  ex- 
penses and  costs. 

He  may  even  retain,  ]>j  way  of  off-set,  what  the  principal  owes  him, 

provided  the  debt  be  liquidated. 

8  A.  9S. 

Art.  2993. — The  attorney  must  also  be  compensated  for  such  losses 
as  he  has  sustained  on  occasion  of  the  management  of  his  principal's 
affairs,  when  he  cannot  be  reproached  with  imprudence. 

Art.  2994. — If  the  attorney  has  advanced  any  sum  of  money  for  the 
affairs  of  the  principal,  the  latter  owes  the  interest  of  it,  from  the  day 
on  which  the  advance  is  proved  to  have  been  made. 

6  L.  7G2 ;  2  A,  "79,  874 

Art.  2995. — If  the  attorney  has  been  empowered  by  several  per- 
sons for  an  affair  common  to  them,  every  one  of  these  persons  shall  be 
bound  jointly  and  severally  in  solldo  to  him  for  all  the  effects  of  the 
procuration. 

CHAPTER  V. 

HOW  THE  PROCURATION  EXPIRES. 

Art.  2996. — The  procuration  expires : 
By  the  revocation  of  the  attorney ; 
By  the  attorney's  renunciation  of  the  power  ; 
By  the  change  of  condition  of  the  principal ; 

By  the  death,  seclusion,  interdiction  or  failure  of  the  agent  or  prin 
cipal. 

15  L.  443. 

Art.  2997. — The  principal  may  revoke  his  power  of  attorney  when- 
ever he  thinks  proper,  and,  if  necessary,  compel  the  agent  to  deliver  up 
the  written  instrument  containing  it,  if  it  be  an  act  under  private  sig- 
nature. 

1  A.  401. 


389  OF  SURETYSHIP.  389 

•  Art.  299S. — If  the  principal  only  notified  his  revocation  to  the 
attorney,  and  not  to  the  persons  with  whom  he  has  empowered  the  at 
torney  to  transact  for  him.  such  persons  shall  always  have  the  right  of 
action  against  the  principal  to  compel  him  to  execute  or  ratify  what  has 
been  done  by  the  attorney ;  the  principal  has,  however,  a  right  of  action 
against  the  attorney. 

1  A.  401. 

Art.  2999. — The  appointment  of  a  new  attorney  to  transact  the 
same  business  produces  the  same  effect  as  a  revocation  of  the  first,  from 
the  day  such  appointment  is  notified  to  the  first  attorney. 

1  A.  401. 

Art.  3000. — The  attorney  may  renounce  his  power  of  attorney,  by 
notifying  to  the  principal  his  renunciation. 

Nevertheless,  if  this  renunciation  be  prejudical  to  the  principal,  he 
ought  to  be  indemnified  by  the  agent,  unless  the  latter  should  be  so 
situated  that  he  cannot  continue  the  agency  without  considerable  injurj'. 

Art.  3001. — If  the  attorney,  being  ignorant  of  death,  or  of  the  ces- 
sation of  the  rights  of  his  principal,  should  continue  under  his  power 
of  attorney,  the  transactions  done  by  him,  during  this  state  of  ignorance, 
are  considered  as  valid. 

Art.  3002. — In  the  cases  above  enumerated,  the  engagements  of  the 
agent  are  carried  into  effect  in  favor  of  third  persons  acting  in  good 
faith. 

Art.  3003. — In  case  of  the  death  of  the  attorney,  his  heir  ought  to 
inform  the  principal  of  it ;  and,  in  the  mean  time,  attend  to  what  may 
be  requisite  for  the  interest  of  the  principal. 


TITLE   XVI. 

OF    SURETYSHIP. 
CHAPTER   I. 

OF  THE  NATURE  AND  EXTENT  OF  SURETYSIlir. 

Art.  3004. — Suretyship  is  an  accessary  promise  by  which  a  person 
binds  liimself  for  another  already  bound,  and  agrees  with  the  creditor 
to  satisfy  the  obligation,  if  the  debtor  does  not. 

5  N.  S.  562 ;  14  L.  509 ;   12  K.  378 ;  1  A.  122. 

Art.  300.3. — Suretyship  can  only  be  given  for  the  performance  of  valid 
contracts.  A  man  may,  however,  become  suret}-  for  an  obligation  of 
which  the  principal  debtor  might  get  a  discliargc  by  an  exception  mere- 
ly personal  to  him,  such  as  that  of  being  a  minor,  or  a  married  woman. 

Art.  300G. — The  suretyship  cannot  exceed  what  may  be  due  by  the 
debtor,  nor  be  contracted  under  more  onerous  conditions. 

It  may  be  contracted  for  a  part  of  the  debt  only,  or  under  more  fa- 
iTorablc  conditions. 


390  OF  SURETYSHIP. 

The  suretyship  which  exceeds  the  debt,  or  which  is  contracted  under 
more  onerous  conditions  shall  not  be  void,  but  shall  be  reduced  to  the 
conditions  of  the  principal  obliejation. 

1  K.  449 ;  10  K.  412 ;  IS^^l'v.  571 ;  1  A.  254;  2  A.  160  ;  8  A.  294. 

Art.  3007. — A  man  may  be  surety  without  the  order  or  even  the 
knowledge  of  the  person  for  whom  he  becomes  surety. 

Surety  may  also  be  given,  not  only  for  the  principal  debtor,  but  also 
for  the  person  who  has  been  his  security. 

Art.  3008. — Suretyship  cannot  be  presumed;  it  ought  to  be  expresed, 
and  is  to  be  restrained  within  the  limits  intended  by  the  contract. 

8  M.  14 ;  3  L.  503 ;  3  E.  3T3 ;  5  E.  70 ;  12  E.  378 ;  1  A.  62 ;  3  A.  205,  577,"  C35 ;  See  5  N.  S.  562  ;  7  L. 
103 ;  7  E.  13 ;  11  E.  390 ;  12  E.  227. 

Art.  3009. — A  general  and  indefinite  suretyship  extends  to  all  the 
accessories  of  the  principal  debt,  and  even  to  the  costs. 

3  L.  378. 

Art.  3010. — Surety  does  not  operate  a  mortgage  on  the  property, 
unless  there  has  been  an  express  agreement. 

3  E.  342  ;  1  A.  62. 

Art.  3011. — The  debtor  obliged  to  furnish  security  must  oiFer  a 
person  able  to  contract,  of  property  sufficient  to  answer  for  the  amount 
of  the  obligation,  and  whose  domicil  is  in  the  jurisdiction  of  the  court 
where  it  is  to  be  given. 

1  N.  S.  276 ;  12  L.  93 ;  14  L.  245 ;  17  L.  43S  ;  2  E.  451 ;  3  E.  413  ;  1  A.  62 ;  3  A.  42  ;  6  A.  326. 

Art.  3012. — 'When  the  security  received  by  the  creditor,  either  vo- 
luntarily or  by  the  direction  of  law,  becomes  insolvent,  his  place  should 
be  supplied  by  another. 

An  exception  to  this  rule  takes  place,  only  where  by  the  agreement 
the  creditor  has  required  that  a  certain  person  shall  be  given  as  secu- 
rity. 

3  A.  865. 

Art.  3013. — The  obligations  of  sureties  descend  to  their  heirs. 


CHAPTER  II. 

OF  THE  EFFECTS  OF  SURETYSHIP. 

Section  I. —  Of  the  Effects  of  Suretyship  hrticircn  the  Creditor  and  the 

Surety. 

Art.  3014. — The  obligation  of  the  surety  towards  the  creditor,  is 
to  pay  him  in  case  the  debtor  should  not  himself  satisfy  the  debt,  and 
the  property  of  such  debtor  is  to  be  previously  discussed  or  seized,  un- 
less the  security  should  have  renounced  the  plea  of  discussion,  or  should 
be  bound  in  solido  jointly  Avith  the  debtor,  in  which  case  the  effects  of 
his  engagement  are  to  be  regulated  by  the  same  principles  which  have 
been  established  for  debtors  in  solido. 

1  A.  254 ;  2  A.  830 ;  8  A.  365.  See  2  M.  330 ;  5  M.  366 ;  11  M.  434 ;  1  N.  S.  478 ;  3  E.  .258. 

Art.  3015. — The  creditor  is  not  bound  to  discuss  the  principal 
debtor's  property,  unless  he  should  be  required  to  do  so  by  the  security, 
on  the  institution  of  proceedings  against  the  latter. 

6  M.  866,  674 ;  6  M.  562 ,  9  M.  385  ;  12  M.  378 ;  1  N.  S.  478 ;  14  L.  165 ;  1  R,  15 ;  5  A.  689. 


391  OF  SURETYSHIP.  391 

Art.  3016. — The  surety  wlao  does  require  the  discussion,  is  bound 
'  to  point  out  to  the  creditor  the  property  of  the  principal  debtor,  and 
furnish  a  sufficient  sum  to  have  the  discussion  carried  i".ito  effect. 

He  must  not  point  out  the  property  of  the  principal  debtor  situated 
out  of  the  State,  nor  the  property  which  is  in  litigation,  nor  that  which 
is  mortgaged  for  debt,  and  no  longer  in  the  possession  of  the  debtor. 

7  N.  S.  195;  13  L.  274;  1  R.  15;  3  A.  674. 

Art.  3017. — When  the  security  has  pointed  out  property  in  the 
manner  directed  in  the  foregoing  article,  and  has  furnished  a  sufficient 
sum  to  have  the  discussion  effected,  the  creditor  is,  to  the  amount  of 
property  pointed  out,  responsible  to  the  security  for  the  insolvency  of 
the  principal  debtor,  provided  it  has  occurred  through  remissness  in 
commencing  proceedings. 

3  A.  G74. 

Art.  3018. — When  several  persons  have  become  sureties  for  the 
same  debt,  each  of  them  is  individually  liable  for  the  whole  of  the  debt 
in  case  of  insolvency  of  any  of  them. 

Any  one  of  tliem  may,  however,  demand  that  the  creditor  should 
divide  his  action,  by  reducing  his  demand  to  the  amount  of  the  share 
and  portion  due  by  each  surety,  unless  the  sureties  have  renounced  to 
the  benefit  of  division. 

15  L.  50 ;  4  A.  273. 

Art.  3019. — A  creditor  can  by  no  means  claim  the  whole  sum  from 
the  surety  who  applied  for  a  division,  when  the  other  sureties  have  be- 
come insolvent  since  the  time  of  that  application.  The  same  thing 
takes  place,  if  the  creditor  has  himself  voluntarily  divided  his  actions 

15  L.  50 ;  4  A.  273. 

Art.  3020. — The  creditor  may  include  in  the  same  suit  both  the 
debtor  and  the  security.  If  he  obtains  judgment  against  both,  the  se- 
curity, who  is  entitled  to  the  benefit  of  discussion,  may  insist  that  the 
judgment  shall  be  first  executed  against  the  principal  debtor. 

1 K.  15. 

Section  II. —  Of  the  Effects  of  Suretj/skip  bctivcen  the  Debtor  and  tht 

Surety. 

Art.  3021. — The  security,  who  has  paid  the  debt,  has  his  remedy 
against  the  principal  debtor,  wliether  the  surety  has  been  given  with  or 
without  the  knowledge  of  the  debtor. 

This  remedy  takes  place  both  for  the  principal  and  interest,  and  for 
the  costs  which  the  surety  may  have  been  sentenced  to  pay;  but  with 
regard  to  the  costs  the  remedy  of  the  security  begins  only  from  tlie  day 
he  has  given  notice  to  the  principal  debtor,  that  a  suit  was  commenced 
against  him. 

19  L.  885. 

Art.  3022. — With  regard  to  that  remedy,  the  security  has  the 
same  riglit  of  action  and  the  same  privilege  of  subrogation,  which  the 
law  grants  to  joint  co-debtors. 

Art.  3023. — When  there  exist  several  principal  joint  debtors  for 
the  same  debt,  he  who  became  a  security  to  them  all,  has  his  remedy 
against  each  of  them  for  the  whole  amount  of  what  he  may  have  paid. 


392  OF  SURETYSHIP. 

Art.  3024. — The  surety  has  no  rcmed}'  against  the  principal  debtor, 
who  has  paid  a  second  time  for  want  of  being  warned  by  the  surety  of 
the  payment  made  by  him.  But  the  surety  may  have  his  action  against 
the  creditor  for  his  reimbursement. 

Art.  3025. — When  the  security  has  paid  without  being  sued,  and 
without  informing  the  principal  debtor,  he  shall  have  no  recourse 
ao-ainst  the  latter,  provided  that,  at  the  time  of  payment,  the  debtor  was 
in  possession  of  such  means  as  would  have  enabled  him  to  have  the 
debt  declared  extinct ;  but  in  this  case  the  security  has  recourse  to  the 
creditor  for  restitution. 

13  L.  142. 

Art.  3026. — A  security  may,  even  before  making  any  payment, 
bring  a  suit  against  the  debtor  to  be  indemnified  by  him  : 

1.  When  there  exists  a  lawsuit  against  him  for  payment; 

13  L.  142. 

2.  When  the  debtor  has  become  a  bankrupt,  or  is  in  a  state  of  in- 
solvency ; 

15  L.  351. 

3.  When  the  debtor  was  bound  to  discharge  him  within  a  certain 
time : 

16  L.  136. 

4.  When  the  debt  has  been  due  by  the  expiration  of  the  term  for 
which  it  was  contracted ; 

5.  At  the  expiration  of  ten  years,  when  the  principal  obligation  is  of 
a  nature  to  last  a  longer  time,  unless  the  principal  obligation,  such  as 
that  of  guardianship,  be  of  a  nature  not  to  be  extinguished  before  a  de- 
terminate time. 

2  A.  469 ;  See  5  M.  6T4 ;  10  M.  196 ;  3  N.  S.  5T5 ;  16  L.  133 ;  19  L.  8S5  ;  4  E.  422 ;  3  A.  681. 

Section  III. —  Of  the  Effects  of  Suretyship  hctiocen  the  Sureties. 

Ar-T.  3027. — When  several  persons  have  been  sureties  for  the  same 
debtor  and  for  the  same  debt,  the  surety,  who  has  satisfied  the  debt,  has 
his  remedy  against  the  other  sureties,  in  proportion  to  the  share  of  each ; 
but  this  remedy  takes  place  only  when  such  person  has  paid  in  conse- 
quence of  a  lawsuit  instituted  against  him. 

2  A.  334. 


CHAPTER  III. 

OF    THE    EXTINCTION    OF    SURETYSHIP. 

Art.  3028. — The  obligation,  which  results  from  a  suretyship,  is  ex- 
tinguished by  all  the  different  modes  in  which  other  obligations  may  be 
extinguished ;  but  the  confusion  which  results  in  case  the  principal 
debtor  or  his  surety  should  become  heirs  oiie  to  the  other,  does  not  ex- 
tinguish the  action  of  the  creditor  against  the  person  who  has  become 
the  security  of  the  security. 

Art.  3029. — The  security  may  oppose  to  the  creditor  all  the  excep- 
tions belonging  to  the  principal  debtor,  and  which  are  inherent  to  the 


393  OF  SURETYSHIP.  393 

debt  ;    but   he   cannot   oppose   exceptions  which  are  personal  to  the 
debtor. 

14  L.  1S3  ;  2  A.  128,  IGO,  591. 

Art.  3030. — The  surety  is  discharged  when,  by  the  act  of  the  cre- 
ditor, the  subrogation  to  his  rights,  mortgages  and  privileges,  can  no 
longer  be  operated  in  favor  of  the  surety. 

6  L.  514 ;  1  R.  212 ;  12  R.  206 ;  2  A.  ISS,  42T.  940  ;  3  A.  674 ;  Seo  3  N.  S.  59S  ;  3  L.  352  :  9  L.  12  ; 
1  R.  528 ;  4  K.  506 ;  6  R.  47 ;  5  A.  266. 

Art.  3031. — The  voluntary  acceptance,  on  the  part  of  the  creditor, 
of  an  immovable  or  any  other  property,  in  payment  of  the  principal 
debt,  is  a  full  discharge  of  the  surety,  even  in  case  the  creditor  should 
be  afterwards  evicted  from  the  property  so  accepted. 

Art.  3032. — The  prolongation  of  the  term  granted  to  the  princi- 
pal debtor  without  the  consent  of  the  surety,  operates  a  discharge  of 
the  latter. 

JO  R.  412  ;  11  R.  38  ;  1  A.  192  :  2  A.  940 ;  Seo  4  M.  639  ;  3  N.  S.  598 ;  7  N.  S.  13  ;  8  N.  S.  27S ;  4  t 
294,  407 ;  16  L.  218 ;  18  L.  470;  19  L.  211 ;  3  R.  299 ;  4R.  276:  5  R.  249  ;  6  R.  899  :  9R.  240;J 
R.  33  ;  1  A.  192. 

CHAPTER  IV. 

OF    THE    LEGAL    AND    JUDICIAL    SURETIES. 

Art.  3033. — Whenever  a  person  is  bound  by  law,  or  by  a  judg- 
ment, to  give  a  surety,  he  must  present  one  who  has  the  quaiifications 
required  in  article  3011. 

3  A.  619;  6  A.  826;  See  3011. 

Art.  3034. — The  person,  who  can  give  no  security,  is  admitted  to 
give  a  pledge  or  other  satisfaction  sufficient  to  secure  the  debt,  provided 
that  the  thing  given  in  pledge  may  be  kept  without  difficulty  or  risk. 

He  may  also  deposit  in  the  hands  of  the  public  officer,  whose  duty 
it  is  to  receive  the  surety,  the  sum  in  which  he  is  required  to  give  it. 

2  A.  132. 

Art.  3035. — A  judicial  surety  cannot  demand  the  discussion  of  the 
property  of  the  principal  debtor. 

12M.  79;  3N.  S.  575 ;  6  N.  S.  495;  9  L.  227;  19  L.  497;  9  R.  45;  1  A.  122;  Soo  10  R.  130, 191 ;  V 

R.  266. 

Art.  303G. — The  person,  who  has  become  the  surety  of  the  judicial 
surety,  cannot  demand  the  discussion  of  the  property  of  the  principal 
debtor,  nor  of  the  surety. 

Art.  3037. — The  effects  of  judicial  surety  are  determined  in  the 
laws  regulating  judicial  proceedings. 

1  A.122;  3  A,  ST. 


394  OF  TRANSACTION  OR  COMPROMISE, 

TITLE  XVII. 

OF  TRANSACTION  OR  COMPROMISE. 


Art.  3038. — A  transaction  or  compromise  is  an  agreement  between 
two  or  more  persons,  who,  for  preventing  or  putting  an  end  to  a  law- 
suit, adjust  their  differences  by  mutual  consent,  in  the  manner  which 
they  agree  on,  and  which  every  one  of  them  prefers  to  the  hope  of  gain- 
ing, balanced  by  the  danger  of  losing. 

This  contract  must  be  reduced  to  writing. 

3  A.  94 ;  6  A.  52S. 

Art.  3039. — A  man  to  transact,  must  have  the  capacity  to  dispose 
of  the  things  included  in  the  transaction. 

The  tutor  or  curator  of  a  minor  or  of  a  person  interdicted  or  absent, 
cannot  make  a  transaction  without  beinoj  authorized  thereto  by  the 
judge. 

Art.  3040. — Transactions  regulate  only  tin?  differences  which  ap- 
pear clearly  to  be  comprehended  in  them  by  the  intention  of  the  par- 
ties, whether  it  be  explained  in  a  general  or  particular  manner,  unless 
it  be  the  necessary  consequence  of  what  is  expressed  ;  and  they  do  not 
extend  to  differences  which  the  parties  never  intended  to  include  in 
them. 

The  renunciation,  which  is  made  therein  to  all  rights,  claims  and 
pretensions,  extends  only  to  what  relates  to  the  differences  on  which  the 
transaction  arises. 

1  E.  307. 

Art.  3041. — If  he  who  has  transacted  concerning  a  right  wliich  he 
had  in  his  own  person,  acquires  afterwards  a  like  right  which  belonged 
to  another,  the  transaction  cannot  be  prejudicial  to  his  new  right. 

Art.  3042. — One  may  add  to  a  transaction  the  stipulation  of  a 
penalty  against  the  party  who  fails  to  perform  it ;  and  in  this  case  the 
non-performance  of  what  has  been  agreed  on,  gives  a  right  to  exact  the 
penalty  according  to  the  tenor  of  the  agreement,  and  pursuant  to  the 
rules  recited  in  the  title  of  conventional  obligations. 

Art.  3043. — The  creditor  who  transacts  with  the  surety  of  his 
debtor,  may  discharge  the  surety  only,  and  the  transaction  will  not  di- 
minish his  right  against  the  debtor.  But  if  it  is  with  the  debtor  him- 
self that  he  has  transacted,  the  surety  will  likewise  have  the  benefit  of 
the  transaction,  because  his  obligation  is  only  an  accessory  to  that  of 
the  principal  debtor. 

Art.  3044. — A  transaction  made  by  one  of  the  interested  parties,  is 
not  binding  for  the  others,  and  cannot  be  opposed  by  them. 

Art.  3045. — Transactions  have,  between  the  interested  parties,  a 
force  equal  to  the  authority  of  things  adjudged.  They  cannot  be  at- 
tacked on  account  of  any  error  in  law  or  any  lesion.  Uut  an  error  in 
3alculatiou  may  always  be  corrected. 

7L.  IT;  3  A.  94;  5  A.  C2T. 


395  OF  RESPITE.  395 

Art.  3046. — A  transaction  may  be  rescinded  notwithstanding,  wben- 
ever  there  exists  an  error  in  the  person  or  on  the  matter  in  dispute.  It 
may  likewise  be  rescinded  in  the  cases  where  there  exists  fraud  or  vio- 
lence. 

4L.  461;  1  A.  320;  3  A.  492. 

Art.  3047. — A  transaction  may  also  be  rescinded,  Avheu  it  has  been 
made  in  execution  of  a  title  which  is  null,  unless  the  parties  have  ex- 
pressly compromised  on  the  nullity. 

1  A.  320. 

Art.  3048. — A  compromise  entered  into  on  documents  which  have 
since  been  found  false,  is  null  i)i  toto. 

,  4  L.  461 ;  4  A.  44. 

Art.  3049. — A  transaction  respecting  a  suit  terminated  by  a  judg- 
ment, which  has  acquired  the  force  of  the  tiling  adjudged,  and  of  which 
the  parties,  or  either  of  them,  was  ignorant,  is  null.  If,  however,  the 
judgment  is  one  from  Avhich  there  could  be  an  appeal,  the  transaction  is 
valid. 

Art.  3050. — When  the  parties  have  compromised  generally  on  all 
the  differences,  which  they  might  have  had  with  one  another,  the  titles 
which  they  then  know  nothing  of,  and  which  were  afterwards  discovered, 
are  not  a  cause  of  rescinding  the  transaction,  unless  they  have  been  kept 
concealed  on  purpose  by  the  deed  of  one  of  the  parties. 

But  tlie  transaction  becomes  void,  if  it  relates  only  to  an  object,  on 
which  it  is  proved  by  the  titles  newly  discovered,  that  one  of  the  parties 
has  no  right  at  all. 

T  L.  85. 


TITLE  X7III. 

OF  RESPITE. 

Art.  3051. — A  respite  is  an  act  by  which  a  debtor,  who  is  unable 
to  satisfy  his  debts  at  the  moment,  transacts  with  his  creditors,  and  ob- 
tains from  them  time  or  delay  for  the  payment  of  the  sums  which  he 
owes  to  them. 

Akt.  3052. — The  respite  is  either  voluntary  or  forced. 

It  is  voluntary,  when  all  the  creditors  consent  to  the  proposal,  which 
the  debtor  makes  to  pay  in  a  limited  time  tlic  whole  or  a  part  of  his 
debt. 

It  is  forced,  when  a  part  of  the  creditors  refuse  to  accept  the  debtor's 
proposal,  and  when  the  latter  is  obliged  to  compel  them  by  judicial 
authority  to  consent  to  what  the  others  have  determined  in  the  cases 
directed  by  law. 

Art.  3053. — The  forced  respite  takes  place  when  the  creditors  do 
not  all  agree,  for  then  the  opinion  of  the  three-fourths  in  number  and 
in  amount  prevails  over  that  of  the  creditors  forming  the  other  fourth, 
and  the  judge  shall  approve  such  opinion,  and  it  shall  be  binding  ou  the 
Other  creditors  who  did  not  agree  to  it. 


396  OF  RESPITE. 

Stat.  Tith  April,  1843,  p.  51. — Tlie  insolvent  laws  of  said  State,  ic 
force  at  the  date  of  the  passage  of  the  last  bankrupt  law  of  the  United 
States,  be  and  the  same  are  hereby  declared  to  be  in  full  force  and  virtue  : 
Provided,  that  the  article  3053  of  the  Louisiana  Code  be  so  amended 
that  the  opinion  of  a  majority  of  the  creditors,  in  number  and  amount, 
shall  prevail. 

9  M.  390 ;  3  N.  S.  446,  506  ;  8  L.  4G7. 

Art.  3054. — But  in  order  that  a  respite  may  produce  that  effect,  it 
is  necessary  : 

1.  That  the  debtor  should  deposit  in  the  office  of  the  clerk  of  the 
court  of  his  domicil,  to  whom  he  presents  his  petitioft  for  calling  his 
creditors,  a  true  and  exact  schedule,  sworn  to  by  him,  of  all  his  mova- 
ble and  immovable  property,  as  well  as  of  his  debts ; 

2.  That  a  meeting  of  the  creditors  of  such  debtor,  domiciliated  in 
the  State,  shall  be  called  on  a  certain  day  at  the  office  of  a  notary  pub- 
lic, by  order  of  the  judge,  at  which  meeting  the  creditors  shall  be  sum- 
moned to  attend  by  process  issued  from  the  court,  if  the  creditors  live 
within  the  parish  where  the  meeting  shall  take  place,  or  by  letters  ad- 
dressed to  them  by  the  notary,  if  they  are  not  residing  in  the  parish ; 

3.  That  the  creditors  be  ordered  to  attend  in  ten  days,  if  they  ire 
all  living  in  the  parish  of  the  judge  who  gives  the  order,  and  in  thirty 
days,  if  there  are  some  of  them  residing  out  of  the  parish ; 

4.  That  this  meeting,  as  well  as  its  object,  be  advertised  in  English 
and  in  French,  by  papers  posted  up  in  the  usual  places,  and  also  by 
three  publications  in  English  and  French  in  the  newspapers,  if  any  be 
printed  within  the  extent  of  the  jurisdiction  of  the  judge  who  grants  the 
order ; 

5.  That  the  creditors  explain  exactly  the  amount  of  the  sums  wliich 
they  claim,  and  make  oath  before  the  notary  holding  the  meeting,  that 
they  are  justly  and  lawfully  due. 

The  creditors  who  do  not  make  this  oath,  shall  not  have  the  right  of 
voting,  and  their  credits  shall  not  be  counted  among  those  by  w^hicli  it 
is  to  be  determined  whether  the  respite  is  granted  or  not. 

Art.  3055. — Absent  creditors,  and  who  are  not  domiciliated  in  the 
State,  are  not,  in  any  case,  summoned  to  the  meeting.  They  are  to  be 
represented  by  an  attorney,  whom  it  is  the  duty  of  the  judge  to  appoint 
for  them. 

The  duties  of  that  attorney  are  confined  to  establishing,  as  far  as 
possible,  the  debts  of  the  absentees,  and  to  seeing  that  the  proceedings 
are  conducted  legally ;  he  cannot  grant  any  thing  in  the  name  of  the  per- 
sons whom  he  represents. 

Art.  305G. — It  is  not  necessary  that  the  creditors  should  all  be  to- 
gether at  the  deliberation  ;  as  they  arrive  at  the  place  of  meeting,  each 
may  take  the  oath  and  express  his  will. 

Art.  3057. — When  it  has  not  been  possible  to  receive  the  declara- 
tions of  all  the  creditors  in  a  single  day,  the  notary  may  adjourn  the 
meeting  to  the  day  following  ;  aud  if  those  two  days  are  not  sufficient, 


397  OF  RESPITE.  397 

he  may  adjourn  it  to  the  next ;  but  the  meeting  must  always  be  closed 
the  tenth  day  at  the  latest. 

Art.  3058. — In  ordci-  that  the  contract  of  respite  may  be  effectual, 
it  must  be  homologated  by  the  judge  who  ordered  the  meeting  of  the 
•creditors. 

8  L.  87 ;  See  8065. 

Art.  3059. — Every  opposition  to  the  homologation  must  be  made  in 
writing  within  ten  days,  dating  from  that  on  whicli  the  proccs  verbal  of 
the  deliberation  of  the  creditors  was  returned  to  the  clerk's  office. 

The  reasons  on  which  the  opposition  is  founded  must  be  expressed. 

Art.  3060. — The  property  of  the  debtor  is  not  hypothecated,  by 
reason  of  the  respite,  for  the  payment  of  the  mass  of  the  de])ts,  unless 
the  respite  has  been  granted  on  the  express  condition  that  this  hypothe- 
cation shall  exist. 

But  the  creditors  who  are  obliged  to  abide  by  the  will  of  tlie  major- 
ity, may  require  that  the  debtor  shall  furnish  security,  that  the  property 
of  which  he  is  left  in  possession  shall  not  be  alienated ;  or  in  ease  it  is, 
that  the  money  arising  from  the  sale  shall  be  employed  in  paying  the 
debts  existing  at  the  time  of  the  respite. 

Art.  3061. — If  the  debtor  has  solicited  the  remission  of  a  portion 
of  his  debts,  the  creditors  who  grant  it  are  alone  bound,  and  this  discharge 
does  not  in  any  way  affect  the  others. 

Those  creditors,  even,  who  have  consented  on  condition  that  the 
others  should  also  accede  to  the  demands  of  the  debtor,  are  not  bound, 
if  a  single  one  refuse. 

Art.  3062. — The  following  classes  of  persons  cannot  be  compelled 
to  enter  into  any  contract  of  respite  or  remission  : 

Privileged  creditors,  of  what  nature  soever  their  privileges  may  be, 
and  creditors  who  have  a  special  mortgage  by  public  act ; 

Minors,  for  the  balance  of  account  of  their  tutorship  or  curatorvship  ; 

Wives  for  their  dotal  rights,  or  for  that  of  reclaiming  their  jiroperty. 

Therefore,  the  privileged  creditors,  and  those  who  have  a  special 
mortgage  as  aforesaid,  cannot  be  deprived  by  any  respite,  though  agreed 
to  by  three-fourths  of  the  creditors  in  number  and  in  amount,  of  the 
right  of  seizing  the  property  on  which  they  have  a  privilege ;  but  if 
such  property  do  not  prove  sufficient  to  satisfy  their  debt,  they  shall  be 
restrained  fi-om  acting  for  tlie  surplus,  either  against  the  person  of  their 
debtor,  or  against  those  of  his  effects  on  which  they  have  no  privilege, 
except  after  the  expiration  of  the  term  granted  by  the  respite. 

But  creditors  having  a  general  mortgage  are  bound  by  the  respite, 
in  the  same  manner  as  ordinary  creditors. 

4  L.  471. 

Art.  3063. — The  time  allowed  to  a  debtor  in  a  forced  respite,  can- 
not exceed  three  years;  and  if  the  creditors  of  the  three-fourths  in 
number  and  in  amount,  have  granted  to  him  more  time,  the  creditors, 
who  are  opposed  to  the  respite,  may  cause  this  delay  to  be  reduced  to 
the  legal  time,  saving  to  the  debtor  the  right,  when  it  shall  be  expired, 
to  call  again  these  creditors  in  order  to  obtain  a  new  delay,  which,  in 


398  OF  ARBITRATION 

this  last  case,  shall  be  granted  only,  if  all  these  creditors  unanimously 
consent  to  it. 

Art.  30G4. — Any  one  who  has  claimed  the  benefit  of  the  cession  of 
goods,  cannot  afterwards  pray  for  a  mere  respite. 

Art.  3065. — When  the  creditors  refuse  a  respite,  the  cession  of 
property  ensues ;  and  the  proceedings  continue,  as  if  the  cession  had 
been  offered  in  the  first  instance. 

See  8  L.  39 ;  See  305S. 


TITLE  XIX. 
OF  arbitratio:n'. 

Art.  3066. — A  submission  is  a  covenant  by  which  persons  who  have 
a  lawsuit  or  difference  with  one  another,  name  arbitrators  to  decide  the 
matter,  and  bind  themselves  reciprocally  to  perform  what  shall  be  arbi- 
trated. 

5  A.  133. 

Art.  3067. — A  submission  must  be  reduced  to  writing. 

Art.  3068. — They  who  cannot  bind  themselves  cannot  make  a  sub- 
mission, such  as  a  married  woman,  unless  it  be  under  her  husband's 
authority. 

An  attorney,  in  fact,  cannot  make  a  submission  without  a  special 
power. 

The  tutors  or  curators  of  minors,  of  persons  intetdicted  or  absent, 
cannot  do  it  without  being  authorized  by  the  judge. 

Art.  3069. — Parties  may  submit  either  all  their  differences,  oi 
only  some  of  them  in  particular ;  and  likewise  they  may  submit  to  arbi- 
tration a  lawsuit  already  instituted  or  only  in  contemplation,  and  gene- 
rally every  thing  which  they  are  concerned  in,  or  which  they  may  dis- 
pose of. 

Art.  3070. — One  may  submit  to  arbitration  the  damages  incurred 
for  a  public  offence  ;  but  it  is  without  any  prejudice  to  the  prosecution 
of  it  in  behalf  of  the  State. 

Art.  3071. — The  power  of  arbitrators  is  limited  to  what  is  explain- 
ed in  the  submission. 

Art.  3072 — If  the  submission  does  not  limit  any  time,  the  power 
of  the  arbitrators  may  continue  in  force  during  three  months  from  the 
date  of  the  submission,  unless  the  parties  agree  to  revoke  it. 

13  L.  462. 

Art.  3073. — It  is  usual  to  undergo  a  penalty  of  a  certain  sum  of 
money  in  the  submission,  which  the  person  who  shall  contravene  the 
award,  or  bring  appeal  therefrom,  shall  be  bound  to  pay  to  the  other 
who  is  willing  to  abide  by  it ;  but  this  covenant  is  not  obligatory,  and 
the  submission  may  subsist  without  the  penalty. 

Art.  3074. — All  persons  may  be  arbitrators,  except  such  as  are 
under  some  incapacity  or  infirmity,  which  renders  them  unfit  for  that 
function. 


399  OF  ARBITRATION.  399 

Therefore  minors  under  the  age  of  eighteen  years,  persons  interdict- 
ed, those  who  are  deaf  or  dumb,  cannot  be  arbitrators. 

Art.  3075. — Women  who,  on  accoxmt  of  their  sex,  cannot  be  judges, 
are  likewise  incapable  of  being  named  arbitrators. 

Art.  3076. — There  are  two  sorts  of  arbitrators : 

The  arbitrators  properly  so  called; 

And  the  amicable  coinpounders. 

Art.  3077. — The  arbitrators  ought  to  determine  as  judges,  agree- 
ably to  the  strictness  of  the  law. 

Amicable  compounders  arc  authorized  to  abate  something  of  the 
strictness  of  the  law,  in  favor  of  the  natural  equity. 

Amicable  compounders  are,  in  other  respects,  subject  to  the  same 
rules  which  are  pi-ovidcd  for  the  arbitrators  by  the  present  title. 

7  L.  477 ;  1  K.  202  ;  Sec  17  L.  2S5 ;  IS  L.  417. 

Art.  3078. — Before  examining  the  difference  to  them  submitted,  the 
arbitrators  ought  to  take  an  oath  liefore  a  jndge,  or  justice  of  the  peace, 
to  I'ender  their  award  witli  integrity  and  impartiality  in  the  cause  which 
is  laid  before  them. 

Art.  3079. — The  parties,  who  have  submitted  their  differences  to 
arbitrators,  must  make  known  their  claims,  and  prove  them,  in  the  same 
manner  as  in  a  court  of  justice,  by  producing  written  or  verbal  evidence 
in  the  order  agreed  on  between  them  or  fixed  by  the  arbitrators. 

Art.  3080. — The  arbitrators  shall  appoint  a  time  and  place  for  exam- 
ining the' matter  to  them  submitted,  and  give  notice  thereof  to  the  par- 
ties or  to  their  attorneys. 

Art.  3081. — The  parties  must  attend  the  arbitrators,  either  in  per- 
son or  by  their  attorney,  with  their  witnesses  and  documents.  If  one 
or  botli  of  them  should  not  appear,  the  arbitrators  maj'  proceed  and 
inquire  into  the  affair  in  their  absence. 

Art.  308"2. — Arbitrators  have  no  authority  to  compel  witnesses  to 
appear  before  them  or  to  administer  an  oatli ;  but  at  the  request  of  ar- 
bitrators it  will  be  the  duty  of  justices  of  the  peace  to  compel  witnesses 
to  appear  and  to  administer  the  oatli  to  them. 

Art.  3083. — If  the  arbitrators  disagree,  another  shall  decide,  and 
that  other  is  called  an  umpire. 

Art.  3084. — The  nomination  of  the  umpire  is  cither  made  by  the 
parties  themselves  at  the  time  of  the  submission,  or  left  to  the  discre- 
tion of  the  arbitrators. 

Art.  3085. —  '\\  henever  the  umpire  has  not  been  appointed  by  the 
submission,  the  arbitrators  have  the  power  to  appoint  him,  though  such 
power  is  not  mentioned  in  the  submission.  But  if  the  arbitrators  can- 
not agcec  on  this  election,  the  umpire  shall  be  appointed  ex  ojjicin  by 
the  judge. 

Art.  308G. — The  umpire  shall  take  an  oatli  similar  to  that  taken  by 
the  arbitrators,  before  examining  the  matter  or  the  point  submitted  to  him. 

Art.  3087. — The  arbitrators,  who  liavc  once  consented  to  act  as 
such,  ought  to  determine  the  suit  or  the  difference  which  is  submitted 
to  them,  as  soon  as  possible,  and  within  the  time  fixed  by  the  sub- 
mission. 


400  OF  COMPROMISE. 

Art.  3088. — Arbitrators  cannot  exceed  the  power  wbicli  is  given  to 
them  ;  and  if  they  exceed  it,  their  award  is  null  for  so  much. 

Art.  3089. — The  authority  of  arbitrators  extends  only  to  the  things 
contained  in  the  submission,  unless  it  has  been  stated  that  they  shall 
have  power  to  decide  all  disputes  which  may  arise  between  the  parties 
in  the  course  of  the  arbitration. 

Art.  3090. — The  arbitrators  ouirht  to  give  their  award  within  the 
time  limited  by  the  submission,  and  it  would  be  null,  if  it  were  given 
after  the  time  is  expired. 

Art.  3091. — Nevertheless  the  parties  may  give  power  to  the  arbi 
trators  to  prolong  the  time,  and  in  this  case  their  power  lasts  during 
the  time  of  the  prorogation. 

Art.  3092. — If  the  submission  specifies  a  certain  time  for  the  ex- 
amination of  the  cause  which  the  arbitrators  are  to  decide,  they  cannot 
give  their  award  till  that  time  is  expired. 

Art.  3093. — If  there  are  several  arbitrators  named  by  the  submis- 
sion, they  cannot  give  their  award,  unless  they  all  see  the  proceedings 
and  try  the  cause  together ;  but  it  is  not  necessary  that  the  award,  be 
signed  by  them  all. 

Art.  3094. — The  arbitrators  shall  fix  by  tlieir  award  the  amount  of 
the  sum  which  they  sentence  one  or  several  of  the  parties  to  pay  to  the 
other  or  others,  though  the  omission  of  this  does  not  annul  the  award 

1  R.  202. 

Art.  3095. — The  arbitrators  may  likewise  pronounce  by  their  award 
on  the  interest  and  costs;  but  their  silence  on  that  subject  is  not  a  cause 
of  nullity. 

Art.  3096. — The  award,  in  order  to  be  put  in  execution,  ought  to 
be  approved  by  the  judge ;  but  this  formality  is  only  intended  to  invest 
the  award  with  a  sufficient  authority  to  ensure  its  execution,  and  not  to 
submit  to  the  judge  the  examination  of  its  merits,  except  in  case  an  ap- 
peal is  brought  before  him. 

3  L.  4SG;  7  L.  4T7 ;  IS  L.  41T ;  See  1  E.  202. 

Art.  3097. — He  who  is  not  satisfied  with  the  award,  may  appeal 
from  it,  though  the  parties  had  renounced  such  appeal  by  the  submission  ; 
but  the  appellant,  before  being  heard  on  his  appeal,  ought  to  pay  the 
penalty  stipulated  in  the  submission,  if  any  has  been  stipulated ;  and 
this  penalty  shall  ever  be  due,  though  the  appellant  afterwards  renoun- 
ces his  appeal ;  but  if  he  succeeds  to  have  the  award  reversed,  either  in 
whole  or  in  part,  the  court  who  shall  pronounce  on  the  appeal,  shall 
order  the  rejjayment  of  the  penalty ;  but  if  the  award  is  confirmed,  the 
penalty,  which  has  been  paid,  shall  operate  no  diminution  on  the  amount 
of  the  award. 

Art.  3098. — The  arbitrators  having  once  given  their  award,  cannot 
retract  it  nor  change  any  thing  in  it. 

Art.  3099. — The  submission  and  power  given  to  the  arbitrators  are 
put  at  an  end  by  any  one  of  tlie  following  causes  : 

1.  By  the  expiration  of  the  time  limited,  either  by  the  submission  or 
by  law,  though  the  award  should  not  be  yet  rendered  ; 

2.  By  the  death  of  one  of  the  parties  or  arbitrators ; 


401  OF  PLEDGE.  401 

3.  By  the  final  award  rendered  by  the  arbitrators ; 

4.  When  the  parties  happen  to  compromise,  touching   the    thing   in 
dispute,  or  when  this  thing  ceases  to  exist. 


TITLE  XX. 

OF  PLEDGE. 

Art.  3100. — The  pledge  is  a  contract  by  which  one  debtor  gives 
something  to  his  creditor  as  a  security  for  his  debt. 

Art.  3101. — There  are  two  kinds  of  pledge: 

The  pawn  ; 

The  antichresis. 

Art.  3102. — A  thing  is  said  to  be  pawned,  when  a  movable  thing  is 
given  as  security;  and  the  antichresis,  when  the  security  given  consistB 
in  immovables   or  slaves. 


CHAPTER  I. 

GENERAL  PROVISIONS. 

Art.  3103. — Every  lawful  obligation  may  be  enforced  by  the  auxi 
liary  obligation  of  pledge. 

Art.  3104. — If  the  principal  obligation  be  conditional,  that  of  the 
pledge  is  confirmed  or  extinguished  with  it. 

Art.  3105. — If  the  obligation  is  null,  so  also  is  the  pledge. 

Art.  3106. — The  obligation  of  pledge  annexed  to  an  obligation 
which  is  purely  natural,  is  rendered  valid  only  when  the  latter  is  con- 
firmed and  becomes  executory. 

Art.  3107. — Pledge  may  be  given  not  only  for  an  obligation  con- 
sisting in  money,  but  also  for  one  having  any  other  object,  for  example, 
a  surety.  Nothing  prevents  one  person  from  giving  a  pledge  to  another 
for  becoming  his  surety  with  a  third. 

Art.  3108. — A  person  may  give  a  pledge,  not  only  for  his  own  debt, 
but  for  that  of  another  also. 

Art.  3109. — A  debtor  inay  give  in  pledge  whatever  belongs  to 
him. 

But  witli  regard  to  those  things,  in  which  he  has  a  property  which 
may  be  divested,  or  which  is  subject  to  encumbrance,  he  cannot  confer 
on  the  creditor,  by  the  pledge,  any  further  right  than  he  had  himself. 

See  2  L.  514. 

Art.  3110. — To  know  whether  the  thing  given  in  pledge,  belonged 
to  the  debtor,  reference  must  be  had  to  the  time  when  the  pawn  was 
made. 

26 


k 


402  OF  PLEDGE. 

AiiT.  3111. — If  at  tlio  time  of  tlio  contract,  the  debtor  liad  not  the 
property  of  the  thing  pledged,  but  has  acquired  it  since,  by  what  title 
soever,  his  ownership  shall  relate  back  to  the  time  of  the  contract,  and 
the  pledge  shall  stand  good. 

AiiT.  3112. — One  person  may  pledge  the  property  of  another,  pro- 
vided it  be  with  the  express  or  tacit  consent  of  the  owner. 

Art.  3113. — But  this  tacit  consent  must  be  inferred  from  circum- 
stances, so  strong  as  to  leave  no  doubt  of  the  owner's  intention,  as  if  he 
was  present  at  the  making  of  tlic  contract,  or  if  he  himself  delivered 
to  the  creditor  the  thing  pawned. 

Art.  3114. — Although  the  property  of  another  cannot  be  given  in 
pledge  without  his  consent,  yet  so  long  as  the  owner  refrains  from  claim- 
ing it,  the  debtor,  who  has  given  it  in  pledge,  cannot  seek  to  have  it  re- 
stored, until  his  debt  has  been  entirely  discharged. 

Art.  3115. — Tutors  and  curators  of  minors  and  of  persons  under 
interdict,  curators  of  vacant  estates  and  of  absent  heirs,  testamentary 
executors,  and  other  administrators  named  or  confirmed  by  a  judge, 
cannot  give  in  pledge  the  property  confided  to  their  administration, 
without  being  expressly  authorized  in  the  manner  prescribed  by  law. 

2  A,  872. 

Art.  31 IC. — An  attorney  cannot  give  in  pledge  the  property  of  his 
principal,  without  the  consent  of  the  latter,  or  an  express  power  to  that 
efi"cct.  . 

Nevertheless,  where  tlic  power  of  attorney  contains  a  general  authori- 
ty to  mortgage  the  property  of  the  principal,  this  power  includes  that 
of  giving  it  in  pledge. 

Art.  3117. — The  property  of  cities  and  other  corporations  can  only 
be  given  in  pledge,  according  to  the  rules  and  subject  to  the  restrictions 
prescribed  on  that  head  by  their  respective  acts  of  incorporation. 

Art.  3118. — A  partner  cannot,  for  his  own  concerns,  give  in  pledge 
the  partnership  property  without  the  consent  of  his  associates.  lie 
cannot  do  it  even  for  the  partnership  concerns,  without  such  consent, 
unless  he  be  vested  with  the  management  of  the  co-partnership. 

This  rule  admits  of  exceptions  in  matters  of  commercial  partner- 
ship. 

Art.  3119. — It  is  essential  to  the  contract  of  pledge  that  the  credi- 
tor be  put  in  possession  of  the  tiling  given  to  liim  in  pledge,  and  conse- 
quently that  actual  delivery  of  it  be  made  to  him,  unless  he  has  posses- 
sion of  it  already  by  some  other  right. 

1  E.  616. 

Art.  3120. — But  this  delivery  is  only  necessary  with  respect  to  cor- 
poreal things ;  as  to  incorporeal  rights,  such  as  debts,  which  arc  given 
in  pledge,  the  delivery  is  merely  fictitious  and  symbolical. 

8ee  8125;  IE.  610;  1  A.  340. 


403  0¥  PLEDGE.  40a 

CHAPTER  II. 

OF    PAWN. 

Akt.  3121. — One  may  pawn  every  corporeal  thing,  which  is  suscep- 
tible of  alienation. 

One  may  even  pawn  money,  as  a  security  for  performing  or  refrain 
iug  to  perform  an  act 

Art.  3122. — One  may,  in  fine,  pawn  incorporeal  movables,  such  ah 
debts  and  other  claims  of  that  nature. 

Art.  3123. — When  a  debtor  wishes  to  pawn  a  claim  on  another 
person,  he  must  make  a  transfer  of  it  in  the  act  of  pledge,  and  deliver 
to  the  creditor  to  whom  it  is  transferred,  the  note  or  obligation  which 
proves  its  exri.stence,  if  it  be  under  private  signature,  and  must  indorse 
it,  if  it  be  negotiable. 

2  L.  361,  SS6;  17  L.  189,  428;  Sco  3127,  8128. 

Art.  3124. — The  pawn  invests  the  creditor  with  the  right  of  caus- 
ing his  debt  to  be  satisfied  by  privilege  and  in  preference  to  the  other 
creditors  of  his  debtor,  out  of  the  product  of  the  movable,  corporeal  or 
incorporeal,  which  has  been  thus  burdened. 

S  L.  4S3 ;  S  R.  10. 

Art.  3125. — But  this  privilege  shall  take  place  against  third  per- 
sons, only  in  case  the  pawn  is  proved  by  an  act  made  either  in  a  public 
form  or  under  private  signature ;  provided  that  in  this  last  case  it 
should  be  duly  registered  in  the  office  of  a  notary  public  at  a  time  not 
suspicious  ;  provided  also,  that  whatever  may  be  the  form  of  the  act,  it 
mentions  the  amount  of  the  debt  as  well  as  the  species  and  nature  of 
the  thing  given  in  pledge,  or  has  a  statement  annexed  thereto  of  its 
number,  weight  and  measure. 

Stat.  12/ A  February,  1852,  p.  15. — ^  1.  AVhen  a  debtor  wishes  to 
pawn  promissory  notes,  bills  of  exchange,  stocks,  obligations  or  claims 
upon  other  persons,  he  shall  deliver  to  the  creditor  the  notes,  bills  of 
exchange,  certificates  of  stock,  or  other  evidences  of  the  claims  or  rights 
so  pawned  ;  and  such  pawn  so  made,  without  further  formalities,  shall 
be  valid,  as  well  against  third  persons  as  against  the  pledgors  thereof, 
if  made  in  good  faith. 

^  2.  All  pledges  of  movable  property  may  be  made  by  private  wri- 
ting, accompanied  by  actual  delivery  and  the  delivery  of  property,  on 
deposit  in  a  warehouse,  shall  pass  by  the  private  assignment  of  the  ware- 
house receipt,  so  as  to  authorize  the  owner  to  pledge  such  proport}-;  and 
such  pledges  so  made,  without  further  formalities,  shall  be  valid  as  well 
against  third  persons,  as  against  the  pledgors  thereof,  if  made  in  good 
faith. 

^  3.  If  a  credit  not  negotiable  be  given  in  pledge,  notice  of  the 
same  must  be  given  to  the  debtor. 

^  4.  In  all  pledges  of  movable  property,  it  shall  be  lawful  for  the 
pledgor  to  authorize  the  sale,  or  other  disposition  of  the  property  pledged, 
in  such  manner  as  may  be  agreed  upon  by  the  parties,  without  the  in- 
tervention of  courts  of  justice. 

aM  570;  5N.8.C1S;  2  1^365,367,459;  3L628;  81*428,483;  1A.443;  8A. 477,  478;  6A.517. 


404  ^F  PLEDGE. 

Art.  3126. — Nevertheless,  the  acts  of  pledge  in  favor  of  the 
banks  of  this  State,  shall  be  considered  as  forming  authentic  proof,  if 
they  have  been  passed  by  the  cashiers  of  those  banks  or  their  branches, 
and  contain  a  description  of  the  objects  given  in  pledge,  in  the  manner 
directed  by  the  preceding  article. 

1  A.443. 

Art.  3127. — When  the  thing  given  in  pledge  consists  of  a  credit 
not  negotiable,  to  enable  the  creditors  to  enjoy  tlie  privilege  above  men- 
tioned, it  is  necessary,  not  only  tliat  the  proof  of  the  pledge  be  made  by 
an  authentic  act,  or  by  act  under  private  signature,  duly  recorded,  as 
stated  in  the  preceding  article,  but  that  a  copy  of  this  act  shall  have 
been  duly  served  on  the  debtor  of  the  credit  given  in  pledge. 

2  L.  361,  3SC ;  17  L.  190 ;  Sco  31'25  and  Amendment ;  See  3123. 

Art.  3128. — On  the  other  hand,  this  notification  of  the  act  of  pledge 
to  the  person  owing  the  debt  pledged,  shall  not  be  necessary,  if  the  debt 
is  evidenced  by  a  note  or  other  obligation  payable  to  the  bearer  or  to 
order,  because  in  that  case  it  will  suffice  that  the  note  or  obligation  shall 
have  been  indorsed  by  the  person  pledging  it,  to  invest  the  creditor 
with  the  privilege  above  mentioned. 

2  L.  361 ;  14  L.  452  ;  17  L.  190;  2  A.  838;  See  3123. 

Art.  3129. — In  no  case  does  this  privilege  subsist  on  the  pledge, 
except  when  the  thing  pledged,  if  it  be  a  corporeal  movable,  or  the  evi- 
dence of  the  debt,  if  it  be  a  note  or  other  obligation  under  private  sig- 
nature, has  been  actually  put  and  remained  in  ■  the  possession  of  the 
creditor,  or  of  a  third  person  agreed  on  by  the  parties. 

1  L.  474;  1  A.  840;  2  A.  838;  6  A.  23,  517. 

Art.  3130. — When  several  things  have  been  pawned,  the  owner  can- 
not retake  one  of  these  without  satisfying  the  whole  debt,  though  he 
offers  to  pay  a  certain  amount  of  it  in  proportion  to  the  thing  which  he 
wishes  to  get. 

1  K.  516. 

Art.  3131. — The  creditor,  who  is  in  possession  of  the  pledge,  can- 
not be  compelled  to  return  it,  but  when  he  has  received  the  whole  pay- 
ment of  the  principal  as  well  as  the  interest  and  costs. 

1  R.  516. 

Art.  3132. — The  creditor  cannot,  in  case  of  failure  of  payment,  dis- 
pose of  the  pledge,  but  may  apply  to  the  judge  to  order  that  the  thing  shall 
remain  to  him  in  payment  for  as  much  as  it  shall  be  estimated  by  two 
appraisers,  or  shall  be  sold  at  public  auction,  at  the  choice  of  the  debtor. 

Any  clause  which  should  authorize  the  creditor  to  appropriate  the 
pledge  to  himself,  or  dispose  thereof  without  the  aforesaid  formalities, 
shall  be  null 

8K.  10;  See  3124. 

Art.  3133. — Until  the  debtor  be  divested  of  his  property,  if  it  is 
the  case,  he  remains  the  proprietor  of  the  pledge,  which  is  in  the  hands 
of  the  creditor  only  as  a  deposit  to  secure  his  privilege  on  it. 

Art.  3134. — The  creditor  is  answerable  agreeably  to  the  rules  which 
have  been  established  under  the  title  of  conventional  obligations^  for  the 
loss  or  decay  ^f  the  pledge  which  may  happen  through  his  fault. 


405  OF  PLEDGE.  405 

On  his  part,  the  debtor  is  bound  to  pay  to  the  ereditor  all  the  useful 
and  necessary  expenses  which  the  latter  has  made  for  the  preservation 
of  the  pledge. 

1  A.  344 ;  Seo  19  L.  556  ;  See  1902. 

Akt.  3135. — The  fruits  of  the  pledge  are  deemed  to  make  a  part  of 
it,  and  therefore  they  remain,  like  the  pledge,  in  the  hands  of  the  cre- 
ditor ;  but  he  cannot  appropriate  them  to  his  own  use,  and  he  is  bound, 
on  the  contrary,  to  give  an  account  of  them  to  the  debtor,  or  to  deduct 
them  from  what  may  be  due  to  him. 

Art.  3136. — If  it  is  a  credit  which  has  been  given  in  pledge,  and  if 
the  credit  brings  interest,  the  creditor  shall  deduct  this  interest  from 
that  which  may  be  due  to  him ;  but  if  the  debt,  for  the  security  of  which 
the  claim  has  been  given,  brings  no  interest  by  itself,  the  deduction  shall 
be  made  on  the  principal  of  the  debt. 

Art.  3137. — If  the  debt,  which  has  been  given  in  pledge,  becomes 
due  before  it  is  redeemed  by  the  person  pawning  it,  the  creditor  by  vir- 
tue of  the  transfer  which  has  been  made  to  him,  shall  be  justified  in  re- 
ceiving the  amount,  and  in  taking  measures  to  recover  it.  When 
received,  he  must  apply  it  to  the  payment  of  the  debt  due  to  himself 
and  restore  the  surplus,  should  there  be  any,  to  the  person  from  whom 
he  held  it  in  pledge. 

Art.  3138. — The  pawn  cannot  be  divded,  notwithstanding  the  divi- 
sibility of  the  debt  between  the  heirs  of  the  debtor  and  those  of  the 
creditor. 

The  debtor's  heir,  who  has  paid  his  share  of  the  debt,  cannot  de- 
mand the  restitution  of  his  share  in  the  pledge,  so  long  as  the  debt  is 
not  fully  satisfied. 

And  reciprocally  the  heir  of  the  creditor,  who  has  received  his  share 
of  the  debt,  cannot  return  the  pledge  to  the  prejudice  of  those  of  his 
co-heirs  who  are  not  satisfied. 

1R.516. 

Art.  3139. — If  the  proceeds  of  the  sale  exceed  the  debt,  the  sur- 
plus shall  be  restored  to  the  proprietor  ;  if,  on  the  contrary,  they  are  not 
sufficient  to  satisfy  it,  the  creditor  is  entitled  to  claim  the  balance  out 
of  the  debtor's  other  property. 

Art.  3140. — The  debtor  who  takes  away  the  pledge  without  the 
creditor's  consent,  commits  a  sort  of  theft. 

Art.  3141. — When  the  creditor  has  been  deceived  as  to  the  substance 
or  quality  of  the  thing  given  in  pledge,  he  may  claim  another  thing  in 
its  stead,  or  demand  immediately  his  payment,  though  the  debtor  be 
solvent. 

Art.  3142. — The  creditor  cannot  acquire  the  pledge  by  prescription, 
whatever  may  be  the  time  of  his  possession. 

CHAPTER  III 

OF    ANTICHRESIS. 

Art.  3143. — The  antichresis  shall  be  reduced  to  writing. 

The  creditor  acquires  by  this  contract  the  right  of  reaping  the 
fruits  or  other  revenues  of  the  immovables  or  slaves  to  him  given  in 
pledge,  on  condition  of  deducting  annually  their  proceeds  from  the  in- 


406  OF  PLEDGE. 

tereat,  if  any  are  due  to  him,  and  afterwards  from  the  principal  of  his 
debt. 

See  3  L.  IW. 

Art.  3144. — The  creditor  is  bound,  unless  the  contrary  be  agreed 
on,  to  pay  the  taxes,  as  well  as  the  annual  charges  of  the  property  which 
have  been  given  to  him  in  pledge. 

He  is  likewise  bound,  under  penalty  of  damages,  to  provide  for  the 
keeping  and  useful  and  necessary  repairs  of  the  pledged  estate,  saving  to 
himself  the  right  of  levying  on  the  fruits  and  revenues  all  the  expenses 
respecting  such  charges. 

He  ought  also  to  provide  for  the  expenses  respecting  the  mainten- 
ance of  the  slaves  who  have  been  given  to  him  in  pledge. 

Art.  3145. — The  debtor  cannot,  before  the  full  payment  of  the  debt, 
claim  the  enjoyment  of  the  immovables  or  slaves  which  he  has  given  in 
pledge. 

Eut  the  creditor  who  wishes  to  free  himself  from  the  obligations 
mentioned  in  the  preceding  articles,  may  always,  unless  he  has  renounced 
this  right,  compel  the  debtor  to  retake  the  enjoyment  of  his  immovable 
or  slaves. 

Art.  3146. — The  creditor  does  not  become  proprietor  of  the  pledged 
immovable  or  slaves,  by  failure  of  payment  at  the  stated  time ;  any 
clause  to  the  contrary  is  null ;  and  in  this  case  it  is  only  lawful  for  him  to 
sue  his  debtor  before  the  court  in  order  to  obtain  a  sentence  against  him 
and  to  cause  the  objects,  which  have  been  put  in  his  hands  in  pledge,  to 
be  seized  and  sold. 

Art.  3 1 47. — When  the  parties  have  agreed  that  the  fruits  or  reve- 
nues shall  be  compensated  with  the  interest,  either  in  whole  or  only  to 
a  certain  amount,  this  covenant  is  performed  as  every  other  which  is  not 
prohibited  by  law. 

Art.  3148. — Every  provision  which  is  contained  in  the  present  title 
with  respect  to  the  antichresis,  cannot  prejudice  the  rights  which  third 
persons  may  have  on  the  immovable,  or  on  the  slaves,  given  in  pledge 
by  way  of  antichresis,  such  as  a  privilege  or  mortgage. 

The  creditor  who  is  in  possession  by  way  of  antichresis,  cannot  have 
any  right  of  preference  above  the  other  creditors  arising  from  the  diifer- 
ence  of  the  pawn  ;  but  if  he  has,  by  any  other  title,  some  privilege  or 
morto;age  lawfully  established  or  preserved  thereon,  he  will  come  in  his 
rank  like  every  other  creditor. 


407  OF  PRIVILEGES.  407 

TITLE   XXI. 

OF    PRIVILEGES. 
CHAPTER  I. 

GENERAL    PROVISIONS. 

Art.  3149. — Whoever  has  bound  himself  personally,  is  obliged  to 
fnlfil  his  engagement  out  of  all  his  property,  movable  and  immovable, 
present  and  future. 

Art.  3150. — The  property  of  the  debtor  is  the  common  pledge  of 
his  creditors,  and  the  proceeds  of  its  sale  must  be  distributed  among 
them  ratably,  unless  there  exist  among  the  creditors  some  lawful  causes 
of  preference. 

15  L.  122 ;  3  A.  428. 

Art.  3151. — Lawful  causes  of  preference  are  privileges  and  mort- 
gages. 

3  A.  430. 

Art.  3152. — Privilege  can  be  claimed  only  for  those  debts  to  which 
it  is  expressly  granted  in  this  code. 

2L.  93;3L.  IM;  4L.  222;  11L.  2S;  ISL.  70;  1  E.  21 ;  2  R.  154;  TR.  159;  11  R.  7S,  279  ;  12  E. 

1T2 ;  2  A.  549, 099,  774,  TS9,  961 :  3  A.  189,  423  ;  4  A.  310 ;  5  A.  349,  570 ;  6  A.  112  ;  See  S'N.  8.  606 ; 

2  L.  113 ;  17  L.  158,  439,  59G  ;  17  L.  443 ;  18  L.  73, 331. 

CHAPTEE    II. 

OF    THE    SEVERAL    KINDS    OF    PRIVILEGES. 

Art.  3153. — Privilege  is  a  riglit,  which  the  nature  of  a  debt  gives 
to  a  creditor,  and  which  entitles  him  to  be  preferred  before  other  credi- 
tors, even  those  who  have  mortgages. 

2  A.  549. 

Art.  3154. — Among  creditors  who  are  privileged,  the  preference  is 
settled  by  the  different  nature  of  their  privileges. 

Art  3155. — The  creditors  who  are  in  the  same  rank  of  privileges, 
are  paid  in  concurrence,  that  is,  on  an  equal  footing. 

Art.  3156. — Privileges  may  exist,  either  on  movables  or  immov- 
ables, or  on  both  at  once. 

CHAPTER  III. 

OF    PRIVILEGES    ON    MOVABLES. 

Art.  3157. — Privileges  are  either  general,  or  special  on  certain  mov- 
ables. 


408  OF  PRIVILEGES. 

Section  I. —  Of  General  Privileges  on  Movables. 

Art.  3158. — The  debts  which  are  privileged  on  all  the  movables  in 
general;  arc  those  hereafter  enumerated,  and  arc  paid  in  the  following 
order. 

1.  Funeral  charges ; 

2.  Law  charges  ; 

17  L.  207. 

3.  Charges,  of  whatever  nature,  occasioned  by  the  last  sickness,  con- 
currently among  those  to  whom  they  are  due. 

7  R.  91. 

4.  The  wages  of  servants  for  the  year  past,  and  so  much  as  is  due  for 
the  current  year  ; 

2  A.1. 

5.  Supplies  of  provisions  made  to  the  debtor  or  his  fiimily,  during 
the  last  six  months,  by  retail  dealers,  such  as  bakers,  butchers,  grocers 
and  during  the  last  year,  by  keepers  of  boarding  houses  and  taverns  ; 

6.  The  salaries  of  clerks,  secretaries,  and  other  persons  of  that  kind  ; 

3  A.42S;  IE.  445;  1  A.  21,  22. 

7.  Dotal  rights  due  to  wives  by  their  husbands. 


§  1. —  Of  Funeral  Cliarges. 

Art.  3159. — Funeral  charges  are  those  which  are  incurred  for  the 
interment  of  a  person  deceased. 

AuT.  31  GO. — If  the  property  of  the  deceased  is  so  encumbered  as 
not  to  suffice  for  the  payment  of  his  creditors,  the  funeral  charges  may, 
upon  the  request  of  any  of  them,  be  reduced  by  the  judge  to  a  reasonable 
rate,  regard  being  had  to  the  station  of  life  which  the  deceased  held, 
and  which  bis  family  holds. 

8  A.  436. 

Art.  3161. — But,  in  case  of  the  reduction,  the  judge  can  never 
allow,  at  the  expense  of  the  estate,  on  any  account  whatever,  more  than 
two  hundred  dollars  for  all  the  expenses  occasioned  by  the  interment  of 
the  deceased. 

3  A.  43G. 


§  2. —  Of  LWw  Charges. 

Art.  3162. — Law  charges  are  such  as  are  occasioned  by  the  prose- 
cution of  a  suit  before  the  courts.  ]5ut  this  name  applies  more  particu- 
larly to  the  costs,  which  the  party  cast  has  to  pay  to  the  party  gaining 
the  cause.     It  is  in  favor  of  these  only  that  the  law  grants  the  privilege. 

17  L.  207;  11  E.  28. 

Art.  3163. — The  creditor  enjoys  this  privilege,  not  with  regard  to 
all  the  expenses  which  he  is  obliged  to  incur  in  obtaining  judgment 
against  his  debtor,  but  with  regard  only  to  such  as  arc  taxed  according 
to  law,  and  such  as  arise  from  the  execution  of  the  judgment. 

17  L.  208 ,  11  E.  28. 


409  OF  PRIVILEGES.  409 

Art.  31G4. — The  costs  for  affixing  seals  and  making  inventories  for 
the  better  preservation  of  the  debtor's  property ;  those  which  occur  in 
cases  of  failure  or  cession  of  property,  for  the  general  benefit  of  credi- 
tors, such  as  fees  to  lawyers  appointed  by  the  court  to  represent  absent 
creditors,  commissions  to  syndics ;  and  finally,  costs  incurred  for  the 
administration  of  estates,  which  are  either  vacant  or  belonging  to  absent 
heirs,  enjoy  the  privileges  established  in  favor  of  law  charges. 

IT  L.  208 ;  1  R.  270 ;  1  A.  21 ;  3  A.  436 ;  See  10  L.  4.38. 

Art.  3165. — Not  only  has  the  creditor  no  privilege  for  the  costs 
which  are  not  taxed,  or  which  are  not  included  among  those  mentioned 
above,  but  he  has  no  right  to  demand  them  even  from  the  debtor. 

IT  L.  209. 


§  3. — 0/ Rvpenses  during  the  last  Sichiess. 

Art.  3166. — The  last  sickness  is  considered  to  be  that  of  which  the 
debtor  died.     It  is  the  expenses  of  this  sickness  that  enjoy  the  privilege. 

7  K.  91. 

Art.  3167. — But  if  the  sickness  with  which  the  deceased  was  at. 
tacked,  and  of  which  he  died,  was  a  chronic  disease,  the  progress  of  which 
was  slow,  and  which  only  occasioned  death  after  a  long  while,  then  the 
privilege  shall  only  commence  from  the  time  when  the  malady  became  so 
serious  as  to  prevent  the  deceased  from  attending  to  his  business,  and 
confined  him  to  his  bed  or  cliamber. 

Art.  3168. — However  long  the  sickness  may  have  lasted  after  arri- 
ving at  the  point  which  prevented  him  from  attending  to  his  afiiiirs,  the 
privilege  granted  for  the  expense  it  has  occasioned,  can  only  extend  to 
one  year  before  the  decease. 

Art.  3169. — The  expenses  of  the  last  sickness  comprehend  the  fees 
of  physicians  and  surgeons,  tlie  wages  of  nurses,  and  the  price  due  to  the 
apothecary  for  medicines  supplied  by  him  to  the  deceased  for  his  per- 
sonal use  during  his  last  illness. 

1  A.  204. 

Art.  3170. — The  accounts  relating  to  these  expenses  must  be  fixed 
by  the  judge,  in  case  of  dispute,  after  hearing  testimony  as  to  the  value 
of  tlie  services  rendered,  or  care  aflbrded,  or  as  to  the  true  value  of 
medicines  supplied,  unless  there  has  been  a  contract  between  the  parties, 
in  which  case  it  must  be  observed. 

Art.  3171. — This  privilege  subsists,  not  only  for  the  expenses  of  the 
last  sickness  of  tlie  debtor,  it  subsists  also  for  those  of  the  last  sickness 
of  children  under  his  authority,  but  it  is  exercised  subject  to  the  rules 
laid  down  above. 

§4. — Of  the  Wtige,H  of  Servants. 

Art.  3172. — Servants  or  domestics  are  tho.ge  who  receive  wages,  and 
Etay  in  the  house  of  the  person  paying  and  employing  them  for  his  ser- 


410  OF  PRIVILEGES. 

vice  or  that  of  his  family ;  such  are,  valets,  footmen,  cooks,  butlers,  and 
others  who  reside  in  the  house. 

6  A.  2T5. 

Ar.t.  3173. — Domestics  or  servants  must  make  a  demand  of  their 
wages,  within  a  year  from  the  time  when  they  left  service,  but  their 
privilege  is  only  for  the  year  past,  and  so  much  as  is  due  for  the  present 
year. 

Art.  3174. — As  to  preceding  years  which  maybe  due,  the  wages  may 
be  recovered,  if  there  is  any  balanced  account,  note  or  obligation  of  the 
debtor ;  but  they  enjoy  no  privilege.  They  form  an  ordinary  debt  for 
which  domestics  or  servants  come  in  by  contribution  with  other  ordinary 
creditors. 

§  5. —  Of  Supplies  of  Frovisions. 

Art.  3175. — Such  supplies  of  provisions  as  confer  a  privilege,  are 
those  which  are  made  by  retail  dealers,  that  is,  persons  keeping  an  open 
Hhop,  and  selling,  by  small  portions,  provisions  and  liquors. 

C  A.  275. 

Art.  3176. — Retail  dealers,  who  have  furnished  such  supplies,  ought 
to  demand  their  money  within  a  year  from  the  time  of  the  first  supply ; 
but  they  have  a  privilege  only  for  the  last  sis  months,  and  for  the  rest 
they  are  placed  on  the  footing  of  ordinary  creditors. 

3  L.  154. 

Art.  3177. — Dealers  by  wholesale  in  provisions  and  liquors  do  not 
enjoy  any  privilege  on  the  property  of  their  debtor,  further  than  what 
they  have  acquired  by  mortgage,  or  by  a  judgment  duly  recJorded. 

Art.  3178. — It  is  not  keepers  of  taverns  and  hotels  alone,  who  are 
comprehended  in  the  term  masters  of  boardififf-houscs,  and  enjoy  a  privi- 
lege for  their  supplies,  but  all  persons  who  make  a  business  of  receiving 
persons  at  board  for  a  fixed  price. 

Art.  3179. — Teachers  and  preceptors,  who  receive  into  their  houses 
young  persons  to  be  brought  up,  fed  and  instructed,  enjoy  the  same  privi- 
lege which  is  given  to  keepers  of  boarding-houses. 

Art.  3180. — The  privilege  of  keepers  of  boarding-houses,  taverns, 
and  other  persons  comprised  in  this  class,  extends  to  the  last  year  due, 
and  to  so  much  as  has  expired  of  ^he  current  year. 


§  G. —  OftJie  Privilege  of  GlerJcs,  and  that  of  Wives  for  their  Dotoer. 

Art.  3181. — Although  clerks,  secretaries  and  other  agents  of  that 
sort  cannot  be  included  under  the  denomination  of  servants,  yet  a  privi- 
lege is  granted  them  for  their  salaries  for  the  last  year  elapsed,  and  so 
much  as  has  elapsed  of  the  current  year.  This  privilege,  however,  can- 
not be  enforced  until  after  that  of  the  furnishers  of  provisions. 

3  A.  42S. 

Art.  3182. — The  privilege  granted  to  wives  on  the  movable  efi'ecta 
of  their  hushinds,  exists  for  the  dotal  property  only,  and  can  only  be 


411  OF  PRIVILEGES.  411 

enforced  on  such  effects  as  were  in  the  husband's  possession  at  the  digso 
lution  of  the  marriage  or  co-partnership.  * 

7  L.  487 ;  3  K.  276 ;  9  K.  142 ;  See  2355. 


Section  II. — Of  the  Privileges  on  particxtlar  Movables 

Art.  3183. — The  privileges,  enumerated  in  tlie  preceding  section,  ex- 
tend to  all  the  movables  of  the  debtor,  without  distinction. 

There  are  some,  which  act  only  on  particular  movables  and  no  other  ; 
and  it  is  of  these  last  that  we  shall  tre^t  in  this  and  the  following  sec- 
tions. 

Art.  3184. — The  debts  which  are  privileged  on  certain  movables, 
are  the  following : 

1 .  The  appointments  of  salaries  of  the  overseer,  for  the  year  last  past 
and  so  much  as  is  due  of  the  current  year,  on  the  product  of  the  last 
crop  and  the  crop  at  present  in  the  ground ; 

12  R.  527;  2  A.  447 ;  3  A.  183. 

2.  The  debt  of  a  workman  or  artisan  for  the  price  of  his  labor,  on  the 
movable  which  he  has  repaired  or  made,  if  the  thing  continues  still  in 
his  possession ; 

6  A.  232. 

3.  The  rents  of  immovables  and  the  hire  of  slaves  employed  in  work- 
ing the  same,  on  the  produce  of  the  crop  of  the  year,  and  on  the  proceeds 
of  the  furniture  which  is  found  in  the  house  let,  or  on  the  farm,  and  of 
every  thing  which  serves  to  the  working  of  the  farm ; 

2  A.  874;  5  A,  646. 

4.  The  debt,  on  the  pledge  which  is  in  the  creditor's  possession  ; 

5.  That  of  a  depositor,  on  the  price  of  the  sale  of  the  thing  by  him 
deposited ; 

6.  The  debt  due  foi*  money  laid  out  in  preserving  the  thing ; 

7.  The  price  due  on  movable  effects,  if  they  are  yet  in  the  possession 
of  the  purchaser ; 

8  A.  276. 

8.  The  things  which  have  been  furnished  by  an  innkeeper,  on  the 
property  of  the  traveller  which  has  been  carried  to  his  inn ; 

9.  The  carrier's  charges  and  the  accessory  expenses,  on  the  thing 
carried. 

Stat.  23d  March.  1 843,  p.  44. — §  1.  Article  three  thousand  one  hun- 
dred and  eighty-four  of  the  Civil  Code  be  so  amended  as  to  insert  in  the 
first  paragraph,  after  the  word  "  overseer,"  the  following  words  :  "  and 
debts  due  for  necessary  supplies  furnished  to  any  farm  or  plantation." 

^  2.  The  privilege  of  the  overseer  as  granted  in  said  article  three 
thousand  one  Jiundred  and  eighty-four,  shall  be  superior  in  rank  to  that 
of  the  furnislicr  of  supplies,  as  granted  by  the  present  act. 

§  3.  This  act  shall  be  in  force  from  and  after  its  promulgation. 

§  1. — Of  the  Privilege  of  the  Lessor. 

Art.  3185. — Tlie  right,  which  the  lessor  has  over  the  products  of 
the  estate,  and  on  the  movables  which  are  found  on  the  place  leased,  for 


412  OF  PRIVILEGES. 

his  rent,  is  of  a  higher  natm*o  than  mere  privilege.  The  laticr  is  only 
enforced  on  the  price  arising  from  the  sale  of  movables  to  which  it  ap- 
plies. It  does  not  enable  the  creditor  to  take  or  keep  the  effects  them- 
selves specially.  The  lessor,  ou  the  contrary',  may  take  the  effects  them- 
selves, and  retain  them  until  he  is  paid. 

17  L.  443;  IR.  445;  2  A.  14. 

Art.  3186. — The  privilege  of  the  lessor  is  enforced  on  the  property 
subject  to  it  in  the  manner  described  in  the  title  of  lease  or  hiring. 


§  2. —  Of  the  Privilege  oftlie  Creditor  on  the  Tiling  Pledged. 

Art.  3187. — The  creditor  acquires  the  right  of  possessing  and  re- 
taining the  movable,  which  he  has  received  in  pledge,  as  a  security  for 
his  deb.t,  and  may  cause  it  to  be  sold  for  the  paj^mcnt  of  the  same. 

Hence  proceeds  the  privilege  which  he  enjoys  on  the  thing. 

Art.  3188. — For  the  exercise  of  this  privilege  it  is  necessary  that  all 
the  requisites  stated  in  the  title  oijjledge.,  should  be  fulfilled. 


§  3. —  Of  the  Privilege  of  a  Depositor. 

Art.  3189. — He  who  deposits  a  thing  in  the  hands  of  another,  still 
remains  the  owner  of  it. 

Consequently,  his  claim  to  it  is  preferred  to  that  of  the  other  credit- 
ors of  the  depositary,  and  he  may  demand  the  restitution  of  it,  if  he  can 
prove  the  deposit,  in  the  same  manner  as  is  required  in  agreements  for 
sums  of  money,  and  if  the  thing  reclaimed  be  identically  the  same  which 
he  deposited. 

9  L.  44 ;  17  L.  162. 

Art.  3190. — If  the  depositary  abuses  his  trust,  by  alienating  the 
thing  confided  to  his  care ;  or  if  his  heir  sell  it,  not  knowing  that  it  had 
been  given  in  deposit,  the  depositor  retains  his  privilege  ou  the  price 
which  shall  be  due. 


§  4. —  Of  Expenses  incurred  for  the  preservation  of  the  Thing. 

Art.  3191. — He  who,  having 'in  his  possession  the  property  of  an- 
other, whether  in  deposit  or  on  loan,  or  otherwise,  has  been  obliged  to 
incur  any  expense  for  its  preservation,  acquires  on  this  property  two  spe- 
cies of  rights. 

IK.  18G;  6  A.  362. 

Art.  3192. — Against  the  owner  of  the  thing,  his  right  is  in  the  na- 
ture of  that  of  pledge,  by  virtue  of  which  he  may  retain  the  thing  until 
the  expenses,  which  he  has  incurred,  are  repaid. 

He  possesses  this  qualified  right  of  pledge,  even  against  the  creditors 
of  the  owner,  if  they  seek  to  have  the  thing  sold.  He  may  refuse  to  re- 
store it,  unless  they  cither  refund  his  advance,  or  give  him  security  that 
the  thing  shall  fetch  a  sufficient  price  for  that  purpose. 


413  OF  PRIVILEGES.  413 

Art.  3-193. — Fiiiall}',  he  who  lias  incurred  these  expenses,  has  a 
privilege  against  these  same  creditors,  by  virtue  of  which  he  has  a  prefer- 
ence over  them  out  of  the  price  of  the  thing  sokl,  for  the  amount  of  such 
necessary  charges  as  he  shall  have  incurred  for  its  preservation.  This 
is  the  privilege  in  question  in  the  present  paragraph. 

§  5. — Of  tlw  Privilege  of  the  Vendor  of  Movable  Effects. 

Art.  3194. — He  who  has  sold  to  another  any  movable  pi-operty, 
which  is  not  paid  for,  has  a  preference,  on  the  price  of  this  property,  over 
the  other  creditors  of  the  purchaser,  whether  the  sale  was  made  on  a 
credit  or  without,  if  the  property  still  remains  in  the  possession  of  the 
purchaser. 

So  that  although  the  vendor  may  have  taken  a  note,  bond  or  other 
acknowledgment  from  the  buyer,  he  still  enjoys  the  privilege. 

3  L.  154 ;  10  L.  G8 ;  14  L.  261 ;  11  R.  140  ;  1  A.  80  ;  .3  A.  40  ;  Seo  5  R.  423 ;  2  A.  335. 

Art.  3195. — But  if  lie  allows  the  things  to  be  sold,  confusedly  with 
a  mass  of  other  things  belonging  to  the  purchaser,  without  making  his 
claim,  he  shall  lose  the  privilege,  because  it  will  not  be  possible,  in  such 
a  case,  to  ascertain  what  price  they  brought. 

4  R.  419. 

Art.  3196. — If  the   sale  was  not  made  on  credit,  the   seller   may 
even  claim  back  the  things  in   kind,  which  were  thus  sold,  as  long  as. 
they  are  in  possession  of  the  purchaser,  and  prevent  the  resale  of  them, 
provided  the  claim  for  restitution  be  made  within  eight  days  of  the  de- 
livery at  farthest,  and  that  the  identity  of  the  objects  be  established. 

Art.  3197. — When  the  things  reclaimed  consist  of  merchandise, 
which  is  sold  in  bales,  packages  or  cases,  the  claim  shall  not  be  admitted, 
if  they  have  been  untied,  unpacked  or  taken  ovit  of  the  cases,  and  mixed 
with  other  things  of  the  same  nature  belonging  to  the  purchaser,  so  that 
their  identity  can  no  longer  be  established. 

Art.  3198. — But  if  the  things  sold  are  of  such  a  nature  as  to  be 
easily  recognized,  as  household  furniture,  even  although  the  papers  or 
cloths,  which  covered  them  at  the  time  of  delivery,  be  removed,  the 
claim  for  restitution  shall  be  allowed. 


§  G. — Of  the  Privilege  of  the  InnTceeiyer  on  the  Effects  of  the  Traveller. 

Art.  3199. — Those  are  called  innkeepers,  who  keep  a  tavern  or 
hotel,  and  make  a  business  of  lodging  travellers. 

Art.  3200. — Innkeepers  have  a  privilege,  or  more  properly  a  right 
of  pledge,  on  the  property  of  travellers  who  take  their  board  or  lodging 
with  them,  by  virtue  of  which  they  may  retain  the  property  and  have  it 
sold,  to  obtain  payment  of  what  such  travellers  may  owe  them,  on  either 
of  the  accounts  above  mentioned. 

14  L.  101. 

Art.  3201. — Innkeepers  enjoy  this  privilege  on  all  the  property 
which  the  traveller  has  brought  to  the  inn,  whether  it  belongs  to  him  or 
not,  because  the  property  has  become  their  pledge  by  the  fact  of  its  in- 
troduction into  the  inn.     This  privilege  extends  even  to  coined  money 


4U  OF  PRIVILEGES. 

which  may  be  found  in  the  apartment  of  the  traveller  who  has  died  in 
their  house. 

2  A.  129. 

Art.  3202. — The  term  travellers  applies  to  strangers  and  such  as 
being  transiently  in  a  place  where  they  have  no  domicil,  take  their  board 
and  lodging  at  an  inn. 

14  L.  101. 

Art.  3203. — The  innkeeper,  who  retains  the  property  of  a  traveller 
for  tavern  expenses  due  to  him,  cannot  sell  it  of  his  own  authority  ;  he 
must  apply  to  a  tribunal  to  have  his  debt  ascertained,  and  the  property 
seized  and  sold  for  the  payment  of  it. 


Section  II. —  Of  the  Privilege  on  SJiips  and  Merchandise. 

Art.  3204. — The  following  debts  are  privileged  on  the  price  of  ships 
or  other  vessels,  in  the  order  in  which  they  are  placed  : 

1.  Legal  and  other  charges,  incurred  to  obtain  the  sale  of  a  ship  or 
other  vessel,  and  the  distribution  of  the  price  ; 

IE.  312;  7L.  4S7. 

2.  Debts  for  pilotage,  wharfage  and  anchorage ; 

3.  The  expenses  of  keeping  the  vessel  from  the  time  of  her  entrance 
into  port,  until  sale,  including  the  wages  of  persons  employed  to  watch 
her; 

4.  The  rent  of  stores,  in  which  the  rigging  and  apparel  are  deposited. 

5.  The  maintenance  of  the  ship  and  her  tackle  and  apparatus,  since 
her  return  into  port  from  her  last  voyage. 

6.  The  wages  of  the  captain  and  crew  employed  on  the  last  voyage  ; 

8  L.  42. 

7.  Sums  lent  to  the  captain  for  the  necessities  of  the  ship  during 
the  last  voyage,  and  reimbursement  of  the  price  of  merchandise  sold 
by  him  for  the  same  purpose ; 

1L.543;  15 L.  145;  4A.9. 

8.  Sums  due  to  sellers,  those  who  have  furnished  materials,  and 
workmen  employed  in  the  construction,  if  tlie  vessel  has  never  made  a 
voyage ;  and  those  due  to  creditors  for  supplies,  labor,  repairing,  vic- 
tuals, armament  and  equipment,  previous  to  the  departure  of  the  ship, 
if  she  has  already  made  a  voyage  ; 

8  L.  191 ;  15  K.  549  ;  3  A.  40  ;  5  K.  423 ;  4  A.  9 ;  See  17  L.  161. 

9.  Money  lent  on  bottomry  for  refitting,  victualling,  arming  and 
equipping  the  vessel  before  her  departure  ; 

1 0.  The  premiums  due  for  insurance  made  on  the  vessel,  tackle  and 
apparel,  and  on  the  armament  and  equipment  of  the  ship  ; 

11.  The  amount  of  damage  due  to  freighters  for  the  failure  in  deliver- 
ing goods  which  they  have  shipped,  or  for  the  reimbursement  of  damage 
sustained  by  the  goods  through  the  fault  of  the  captain  or  crew.  • 

Sec  12  L.  335. 

Stat.  28  Ajvil,  1853,  No.  192.— In  all  cases  where  any  loss  or  damage 
has  been  caused  to  the  person  or  property  of  any  individual,  by  any  care- 
lessness, neglect  or  want  of  skill  in  the  direction  or  management  of  any 


415  OF  PRIVILEGES.  415 

steamboat,  barge,  flatboat,  water-craft  or  raft,  the  party  injured  shall  have 
a  privilege  to  rank  after  the  privileges  specified  by  the  Civil  Code,  article 
three  thousand  two  hundred  and  four,  and  continue  for  the  same  length  of 
time  in  the  same  manner  provided  for  other  privileges  by  the  said  arti- 
cle of  the  Civil  Code  upon  such  steamboat,  barge,  flatboat,  water-craft  or 
raft,  for  the  amount  of  the  loss  or  damage  sustained,  and  may  proceed 
by  attachment  or  in  rem  to  recover  the  same  :  Provided,  however,  that 
before  so  proceeding  he,  or  if  he  be  absent,  his  agent  or  attorney,  shall 
swear  to  the  amount  of  the  loss  or  damage  sustained,  and  file  a  bond 
with  good  and  sufficient  security,  in  favor  of  tlie  owners  of  the  steam- 
boat, barge,  flatboat,  water-craft  or  raft,  whomsoever  they  may  be,  whether 
their  names  be  known  or  not,  for  a  sum  exceeding  by  one-half  in  amount 
of  that  which  is  claimed,  as  a  security  for  the  payment  of  such  damages 
as  the  owners  may  recover  against  him  in  case  it  should  be  decided  that 
the  attachment  or  proceeding  was  wrongfully  obtained  :  And,  provided, 
further,  that  it  shall  be  suflScient  for  the  oath  required  to  be  taken  by 
the  agent  or  attorney  to  be  to  the  best  of  his  knowledge  and  belief. 

Art.  3205. — The  creditors,  named  in  each  number  of  the  preced- 
ing article,  come  in  together,  and  must  all  sufi'er  a  ratable  diminution, 
if  the  fund  be  insuflicient. 

15  L.  142. 

Art.  3206. — Creditors,  having  privileges  on  ships  or  other  vessels, 
may  pursue  the  vessel  in  the  possession  of  any  person  who  may  have 
obtained  it  by  virtue  of  a  sale  ;  in  this  case,  however,  a  distinction  must 
be  made  between  a  forced  and  a  voluntary  sale. 

Art.  3207. — When  the  sale  has  been  a  forced  one,  the  right  of  the 
purchaser  to  the  property  becomes  irrevocable  ;  he  owes  only  the  price 
of  adjudication,  and  over  it  the  creditors  exercise  their  privilege,  in  the 
order  above  prescribed. 

8  L.  42. 

Art.  3208. — When  the  sale  is  voluntary  on  the  part  of  the  owner, 
a  distinction  is  to  be  made,  whether  the  vessel  was  in  port  or  on  a 
voyage. 

Art.  3209. — When  a  sale  has  been  made,  the  vessel  being  in  port, 
the  creditors  of  tlic  vendor,  who  enjoy  the  privilege  for  some  cause  an- 
terior to  the  act  of  sale,  may  demand  payment  and  enforce  their  rights 
over  the  ship,  until  a  voyage  has  been  made  in  the  name  and  at  the 
risk  of  the  purchaser,  without  any  claim  interposed  by  them. 

Art.  3210. — But  wlicn  the  ship  has  ma'le  a  voyage  in  the  name  and 
at  the  risk  of  the  purchaser,  without  any  claim  on  the  part  of  the  privi- 
leged creditors  of  the  vendor,  these  privileges  are  lost  and  extinct 
against  the  ship,  if  she  was  in  port  at  the  time  of  sale. 

Art.  32 11. — On  the  other  hand,  if  the  ship  wa.i  on  a  voyage,  at  the 
time  of  the  sale,  the  privilege  of  the  creditor  against  the  purchaser  shall 
only  become  extinct  after  the  ship  shall  have  returned  to  the  port  of 
departure,  and  the  creditors  of  the  vendor  shall  have  allowed  her  to  de- 
part on  another  voyage  for  the  account  and  risk  of  the  purchaser,  and 
shall  have  made  no  claim. 


416  OF  PRIVILEGES. 

Art.  3212. — A  ship  is  considered  to  have  made  a  voyage,  when  her 
departure  from  one  port  and  arrival  at  another  shall  have  taken  place, 
or  when,  without  having  arrived  at  another,  more  than  sixty  days  have 
elapsed  between  the  departure  and  I'eturn  to  the  same  port,  or  when  the 
ship,  having  departed  on  a  long  voyage,  has  been  out  more  than  sixty 
days,  without  any  claim  on  the  part  of  persons  pretending  a  privilege. 

3  A.  40. 

Art.  3213. — The  captain  has  a  privilege  for  the  freight,  during  fif- 
teen days  after  the  delivery  of  the  merchandise,  if  they  have  not  passed 
into  third  hands.  He  may  even  keep  the  goods,  unless  the  shipper  or 
consignee  shall  give  him  security  for  the  payment  of  the  freight. 

IL.  269;  IE.  556;  2  A.  129, 

Art.  3214. — Every  consignee  or  commission  agent,  who  has  made 
advances  on  goods  consigned  to  him,  or  placed  in  his  liands  to  be  sold 
for  account  of  the  consignor,  has  a  privilege  for  the  amount  of  these  ad- 
vances, with  interest  and  charges,  on  the  value  of  the  goods,  if  they  are 
at  his  disposal  in  his  stores,  or  in  a  public  warehouse,  or  if,  before  their 
arrival,  he  can  show,  by  a  bill  of  lading  or  letter  of  advice,  that  they 
have  been  despatched  to  him. 

This  privilege  extends  to  the  unpaid  price  of  the  goods  which  the 
consignee  or  agent  shall  have  thus  received  and  sold. 

Stat,  nth  February^  1841,  p.  21. — That  Article  three  thousand 
two  hundred  and  fourteen  of  the  Civil  Code  be  so  amended  that 
every  consignee  commission  agent  or  factor  shall  have  privilege  pre- 
ferred to  any  attaching  creditor  on  the  goods  consigned  to  him  for  any 
balance  due  him,  whether  specially  advanced  on  said  goods  or  not,  pro- 
vided they  have  been  received  by  him,  or  an  invoice  or  bill  of  lading  has 
been  received  by  him  previous  to  the  atachment.  Provided,  that  the 
privilege  established  by  this  act  shall  not  have  a  preference  over  a  pri- 
vilege pre-existing  on  the  goods  aforesaid  in  behalf  of  a  resident  cre- 
ditor of  this  State. 

Stat.  Sth  March,  1841,  p.  58.—^  1.  The  first  section  of  the  act  to 
which  this  is  an  amendment  be  so  amended  that  the  last  proviso  con- 
tained in  the  French  text  of  said  section  do  agree  with  the  English  text 
and  read  in  the  following  manner  in  both  texts,  "  Provided,  that  the 
privilege  established  by  this  act  shall  not  have  a  preference  over  a  privi- 
lege pre-existing  on  the  goods  aforesaid  in  behalf  of  a  resident  creditor 
of  this  State." 

^  2.  All  laws  or  parts  of  laws  contrary  to  this  act  be,  and  the  same 
are  hereby  repealed. 

1  L.863;  2L.440;  3L.  301,562;  6  L.  893  ;    12  L.  144,  .370,  879 ;  13L.4S9;  2R.342;  2  A,  572;  3A 

44T  ;  See  14  L.  473,  476. 

Art.  3215. — In  the  event  of  the  failure  of  the  consignee  or  com- 
mission agent,  the  consignor  has  not  only  a  right  to  reclaim  the  goods 
sent  by  him,  and  which  remain  unsold  in  the  hands  of  the  consignee  or 
agent,  if  he  can  prove  their  identity ;  but  he  has  also  a  privilege  on  the 
price  of  such  as  have  been  sold,  if  the  price  has  not  been  paid  by  the 
purchaser,  or  passed  into  account  current  between  him  and  the  bank- 
rupt. 

•  6  K.  268. 


417  OF  PRIVILEGES.  417 

CHAPTER  IV. 

OF  PRIVILEGES  ON  IMMOVABLES  AND  SLAVES. 

Art.  3216. — Creditors  who  have  a  privilege  on  immovables  and 
slaves  arc : 

1.  The  vendor,  on  the  estate  or  slave  by  him  sold,  for  the  payment 
of  the  price,  or  so  much  of  it  as  is  due,  whether  it  was  sold  on  or  with- 
out a  credit ; 

2.  Architects  and  undertakers,  bricklayers  and  other  workmen  em- 
ployed in  constructing,  rebuilding  or  repairing  houses,  buildings,  or  mak- 
ing other  works,  on  such  houses,  buildings,  or  works  by  them  constructed, 
rebuilt  or  repaired ; 

13  L.  8;  15  L.  8S4,  416;  2  A.  309;  Sec  2743. 

3.  Those  who  have  supplied  tlie  owner  with  materials  for  the  con- 
struction or  repair  of  an  edifice  or  other  work,  which  he  has  erected  or 
repaired  out  of  these  materials,  on  the  edifice  or  other  work  constructed 
or  repaired ; 

4.  Those  who  have  worked  by  the  job,  or  by  employing  their  slaves 
in  the  manner  directed  by  law,  or  by  the  regulations  of  the  police,  in 
making  or  repairing  the  levees,  bridges,  ditches,  and  roads  of  a  proprie- 
tor, on  the  land,  the  levees,  bridges  and  roads  over  which  have  been 
made  or  repaired. 

2  A.  309 ;   6  A.  139,  ITS,  212 ;  See  5  L.  349 ;  13  L.  9 ;  3  A.  600. 

Art.  3217. — The  privilege  granted  to  the  vendor  on  the  immovable 
sold  by  him,  extends  to  the  slaves,  beasts  and  agricultural  implements 
attached  to  the  estate,  and  which  made  part  of  the  sale. 

Art.  3218. — If  there  are  several  successive  sales,  on  which  the 
price  is  due  wholly  or  in  part,  the  first  vendor  is  preferred  to  the  second, 
the  second  to  the  third,  and  so  throughout. 

CHAPTER  V. 

OF    PRIVILEGES  WniCn  EMBRACE  DOTH  MOVABLES  AND   IMMOVABLES. 

Art.  3219. — The  privileges  which  extend  alike  to  movables  and 
immovables,  arc  the  following: 

1.  Funeral  charges  ;  • 

2.  Judicial  charges ; 

17  L.  207. 

3.  Expenses  of  the  last  illness  ; 

4.  The  wages  of  servants ; 

5.  The  salaries  of  secretaries,  clerks  and  otlier  agents  of  that  kind. 

With  regard  to  the  wife's  dower,  she  has  no  privilege  on  the  immo- 
vable property  of  her  husband,  but  a  mere  ri'^lit  nf  mortgage,  as  is 
said  under  the  title  of  contract  of  marriage. 

3  A.  429;  2A.  7S9. 

Art.  3220. — "When,  for  want  of  movables,  the  creditors,  who  have 
a  privilege  according  to  the  preceding  article,  demand  to  be  paid  out  of 
27 


418  OF  PRIVILEGES. 

the  proceeds  of  the  immovables  and  slaves  of  the  debtor,  the  paymenta 
must  be  made  in  the  order  laid  down  in  the  following  chapter. 

8  A.  4-36. 


CHAPTER  VI. 

OF  THE  ORDER  IN   WHICH  PRIVILEGED  CREDITORS  ARE  TO  BE  PAID. 

Art.  3221. — If  the  movable  property,  not  subjected  to  an^y 
special  privilege,  is  sufficient  to  pay  the  debts  which  have  a  general 
privilege  on  the  movables,  those  debts  arc  paid  in  the  following 
order : 

Funeral  charges  are  the  first  paid  ; 

Law  charges,  the  second ; 

Expenses  of  the  last  illness,  the  third  ; 

The  wages  of  servants,  the  fourth  ; 

Supplies  of  provisions,  the  fifth ; 

3  A.  428  ;  6  E.  85. 

The  salaries  of  clerks,  secretaries  and  others  of  that  nature,  the 
sixth ; 

And  finall}',  the  wife's  dower,  the  seventh. 

Art.  3222. — But  when  part  of  the  movables  are  subject  to  special 
privileges,  and  the  remainder  of  the  movables  are  not  sufficient  to  dis- 
charge the  debts  having  a  privilege  on  the  whole  mass  of  movables,  or 
if  there  be  equality  between  the  special  privileges,  the  following  rules 
shall  direct  the  determination. 

Art.  3223. — Whatever  may  be  the  privilege  of  the  lessor,  charges 
for  selling  the  movables  subjected  to  it  are  paid  before  that  which  is 
due  for  the  rent,  because  it  is  these  charges  which  procure  the  payment 
of  the  rent. 

1  R.  445 ;  2  R.  350 ;  4  E.  366;  8  A.  T04. 

Art.  3224. — The  case  is  the  same  with  respect  to  the  funeral  expen- 
ses of  the  debtor  and  his  family ;  when  there  is  no  other  source  from 
which  they  can  be  paid,  they  have  a  preference  over  the  debt  for  tent 
or  hire,  on  tlie  price  of  the  movables  contained  in  the  house  or  on  the 
farm. 

1  E.  445. 

Art.  3225. — But  the  lessor  has  a  preference  on  the  price  of  these 
movables,  over  all  the  other  privileged  debts  of  the  deceased,  such  as 
expenses  of  the  last  illness,  and  others  which  have  a  general  privilege 
on  the  movables. 

17  L.  443;  1  E.  445. 

Art.  3226. — With  regard  to  the  crops  which  are  subject  to  the 
lessor's  privilege,  the  expenses  for  seed  and  labor,  the  wages  of  over- 
seers and  managers  are  to  be  paid  out  of  the  product  of  the  year,  in 
preference  to  the  lessor's  debt. 

So  also,  he  who  has  supplied  the  farming  utensils,  and  who  has  not 
been  paid,  is  paid  in  preference  to  the  lessor,  out  of  the  price  of  their  sale. 

6  E.  85,484;  8  A.  2T6. 

Art.  3227. — If  among  the  movables  with  which  the  house  or  farm, 


419  OF  PRIA^LEGFS.  419 

or  any  other  thing  subject  to  the  lessor's  privilege,  is  provided,  there 
should  be  some  which  were  deposited  by  a  third  person  in  the  hands  of 
the  lessor  or  farmer,  the  lessor  shall  have  a  preference  over  the  deposi- 
tary, on  the  things  deposited,  for  the  payment  of  his  rent,  if  there  are 
no  other  movables  subject  to  his  privilege,  or  if  they  are  not  sufficient; 
unless  it  be  proved  that  the  lessor  knew  that  the  things  deposited  did 
not  belong  to  his  tenant  or  farmer. 

Art.  3228. — With  the  exception  stated  in  the  foregoing  article,  the 
privilege  of  the  depositor  on  the  thing  deposited  is  not  preceded  by  any 
other  privileged  debt,  even  funeral  expenses,  luiless  it  be  that  the  depos- 
itor must  contribute  to  the  expense  of  sealing  and  making  inventory, 
because  this  expense  is  necessary  t*o  the  preservation  of  tlie  deposit. 

11  K.  4. 

Art.  3229. — The  privilege  of  him  who  has  taken  care  of  the  prop- 
erty of  another,  has  a  preference  over  that  property,  for  the  necessary 
expenses  which  he  incurred,  above  all  the  other  claims  for  expenses, 
even  funeral  charges ;  his  privilege  yields  only  to  that  for  the  charges 
on  the  sale  of  the  thing  preserved. 

6  A.  862. 

Art.  3230. — The  privilege  of  the  vendor  on  movables  sold  by 
him,  which  are  still  in  possession  of  the  vendee,  yields  to  that  of  the 
owner  of  the  house  or  farm  which  they  serve  to  furnish  or  supply, 
for  his  rents.  It  yields  also  to  the  charges  for  affixing  seals  and 
making  inventories,  but  not  to  the  funeral  or  other  expenses  of  the 
debtor. 

2A.U. 

Art.  3231. — The  privilege  of  innkeepers  on  the  effects  of  travellers 
deceased  in  their  house,  is  postponed  to  funeral  and  law  charges,  but 
is  preferred  to  all  the  other  privileged  debts  of  the  deceased. 

Art.  3232. — The  privilege  of  carriers,  for  the  cost  of  transportation 
and  incidental  expenses,  yields  only  to  the  charges  which  would  arise  on 
the  sale  of  the  goods. 

The  case  is  the  same  respecting  the  freight  of  goods  carried  on  board 
a  ship  or  other  vessel. 

Art.  3233. — If  the  movables  of  the  debtor,  by  reason  of  the  spe- 
cial privileges  affecting  them,  or  for  any  other  cause,  are  not  sufficient 
to  discharge  the  debts  having  a  privilege  on  the  whole  movable  proper- 
ty, the  balance  must  be  raised  on  the  immovables  sind  slaves  of  the 
debtor,  as  hereafter  provided. 

3  A.  4.36. 

Art.  3234. — If  the  movables  or  slaves  of  the  debtor  are  subject  to 
the  vendor's  privilege,  or  if  there  be  a  house  or  other  work  subjected  to 
the  privilege  of  the  workmen  who  have  constructed  or  repaired  it,  or  of 
the  individual  who  furnished  the  materials,  the  vendor,  workmen  and 
furnishers  of  materials,  shall  be  paid  from  the  price  of  the  object  affect 
ed  in  their  favor,  in  preference  to  other  privileged  debts  of  the  debtor, 
even  funeral  charges,  except  the  charges  for  affixing  seals,  making  in- 
ventories, and  others  which  may  have  been  necessary  to  procure  the 
Bale  of  the  thing. 

2  R.  280,  527 ;  See  13  L.  8. 

Art.  3235. — When  the  vendor  of  lands  finds  himself  opposed  by 


i 


420  OF  PRIVILEGES. 

workmen  seeking  payment  for  a  house  or  other  work  erected  on  the  land, 
a  separate  appraisement  is  made  of  the  ground  and  of  the  house,  the 
vendor  is  paid  to  the  amount  of  the  appraisement  on  the  land,  and  the 
other  to  the  amount  of  the  appraisement  of  the  building. 

1  E.  173. 

Art.  3236. — With  the  exception  of  special  privileges,  which  exist 
on  immovables  in  f\ivor  of  the  vendor,  of  workmen  and  furnishers  of 
materials,  as  declared  above,  the  debts  privileged  on  the  movables  and 
immovables  generall}',  ought  to  be  paid  if  the  movables  are  insuffi- 
cient, out  of  the  product  of  the  immovables  and  slaves  belonging 
to  the  debtor,  in  preference  to  all  other  privileged  and  mortgaged 
creditors. 

The  loss  which  may  then  result  from  their  payment  must  be  borne 
by  the  creditor  whose  mortgage  is  least  ancient,  and  so  in  succession, 
ascending  according  to  the  order  of  the  mortgages,  or  by  ^?ro  rata 
contributions  where  two  or  more  of  the  mortgages  have  the  same 
date. 

3  A.  43G. 

Art.  3237. — When  the  debts  privileged  on  the  movables  and  im- 
movables cannot  be  paid  entirely,  either  because  the  movable  effects 
are  of  small  value,  or  subject  to  special  jirivileges  which  claim  a  pref- 
erence, or  because  the  movables  and  immovables  together  do  not 
suffice,  the  deficiency  must  not  be  borne  proportionally  among  the  debt- 
ors, but  the  debts  must  be  paid  according  to  the  order  established  above, 
and  the  loss  must  fall  on  those  which  are  of  inferior  dignity. 

IK.  445. 


CHAPTER  VII. 

HOW    PRIVILEGES    ARE    PRESERVED    AND    RECORDED. 

Art.  3238. — The  vendor  of  an  immovable  or  slave  only  pre- 
serves his  privilege  on  the  object,  when  he  has  caused  to  be  duly  record- 
ed, at  the  office  for  recording  mortgages,  his  act  of  sale  in  the  manner 
directed  hereafter,  whatever  may  be  the  amount  due  to  him  on  the  sale. 

2  A.  251,  SOO ;  3  A.  600 ;  6  A.  162. 

Art.  3239. — Architects,  contractors,  masons  and  other  workmen, 
those  who  have  supplied  the  owner  with  materials  for  the  construction 
or  repair  of  his  buildings  or  other  works,  those  who  have  contracted, 
in  the  manner  provided  by  the  police  regulations,  to  make  or  put  in 
repair  the  levees,  bridges,  canals  and  roads  of  a  proprietor,  preserve 
their  privileges,  only  in  so  far  as  they  have  recorded  with  the  register 
of  mortgages,  the  act  containing  the  bargains  they  have  made,  or  the 
amount  or  acknowledgment  of  what  is  due  to  them,  in  all  cases  where 
the  amount  of  the  bargain  or  agreement,  or  the  amount  of  the  account 
or  acknowledgment,  exceeds  the  sum  of  five  hundred  dollars. 

2  A.  549;  3  A.  19S;  4  A.  97;  5  A.  431;  See  16  L.  292;  Sco  3332. 

Art.  3240. — The  privileges,  enumerated  in  the  two  preceding  arti- 
cles,  are   valid  against   third  persons  from  the  date  of   the  act  if  it 


421  OF  PRIVILEGES.  421 

has  been  duly  recorded,  that  is  to  say,  -within  six  days  of  the  date,  if 
the  act  has  been  passed  in  the  place  where  the  registry  of  mortgages  is 
kept,  or  adding  one  day  more  for  every  two  leagues  from  the  place 
where  the  act  was  passed,  to  that  where  th<?  register's  office  is  kept. 

16  L.  292  ;  See  3332. 

Art.  3241. — When  the  act,  on  which  the  privilege  is  founded,  has 
not  been  recorded  within  the  time  required  in  the  preceding  article,  it 
shall  have  no  effect  as  a  privilege,  that  is  to  say,  it  shall  confer  no  pre- 
ference on  the  creditor  who  holds  it,  over  creditors  who  have  acquired 
a  mortgage  in  the  mean  time,  which  they  have  recorded  before  it;  it 
shall,  however,  still  avail  as  a  mortgage,  and  be  good  against  third  per- 
sons from  the  time  of  its  being  recorded. 

laL.  292;  2  A.  251. 

Art.  3242. — Creditors  and  legatees,  who  demand  a  partition  of  the 
patrimony  of  the  deceased,  in  conformity  with  the  pi-ovisions  contained 
in  the  third  section  of  the  title  of  succcssiojis,  preserve  their  privilege, 
as  against  the  heirs  or  representatives  of  the  deceased,  on  the  immov- 
ables and  slaves  of  the  succession,  onl}^  by  recording  the  evidences  of 
their  claims  against  the  succession,  within  three  months  after  it  is 
opened. 

Before  the  expiration  of  this  time,  no  mortgage  can  be  enforced 
against  the  property,  nor  any  alienation  be  made  by  the  heirs  or  repre- 
sentatives of  the  deceased,  to  the  injury  of  the  creditors  of  the  succes- 
sion. 

Art.  3243. — The  debts  which  are  described  in  the  preceding  chap 
ter,  and  which  include  both  movables  and  immovables,  are  not  required 
to  be  recorded. 

6R.  4S4;  3  A.  2T6. 


CHAPTER  VIII. 

OF    THE    MANNER    IN    WHICH    PRIVILEGES    ARE    EXTINGUISHED. 

Art.  3244. — Privileges  become  extinct : 

1.  By  the  extinction  of  the  thing  subject  to  the  privilege; 

3  A.  133. 

2.  By  the  creditor  acquiring  the  thing  subject  to  it ; 

3.  By  the  extinction  of  the  debt  which  gave  birth  to  it ; 

4.  By  prescription. 


422  OF  MORTGAGES. 

TITLE  XXII. 

OF    MORTGAGES 
CHAPTER  I. 

GENERAL    TROVISIONS. 

AuT.  3245. — Mortgage  is  a  right  granted  to  the  creditor  over  the 
property  of  his  debtor,  for  the  security  of  his  debt,  and  gives  him  the 
power  of  having  the  property  seized  and  sold  in  default  of  payment. 

8  N.  S.  333 ;  10  L.  244  ;  5  K.  496;  10  E.  2S ;  Sco  14  L.  531. 

Art.  3246. — Mortgage  is  a  species  of  pledge,  the  thing  mortgaged 
being  bound  for  the  payment  of  the  debt,  or  fulfilment  of  the  obligation. 

2  A.  168. 

Art.  3247. — It  resembles  the  pledge  : 

1.  In  that  both  are  granted  to  the  creditor,  for  the  security  of  his 
debt ; 

2  In  that  both  bind  the  thing  subjected  to  them,  and  that  the  same 
thing  cannot  be  engaged  to  a  second  creditor,  to  the  prejudice  of  the 
first. 

Art.   3248. — Mortgage  differs  from  pledge  in  this  : 

1.  That  mortgage  exists  only  on  immovables  and  slaves,  or  such 
other  rights  as  shall  be  hereafter  described ;  and  that  the  pledge  has  for 
its  object  only  movables,  corporeal  or  incorporeal. 

2.  That,  in  pledge,  the  movables  and  effects  subjected  to  it,  are  put 
into  the  possession  of  the  creditor,  or  of  a  third  person  agreed  upon  by 
the  parties,  while  the  mortgage  only  subjects  to  the  riglits  of  tlie  credi- 
tor the  property  on  which  it  is  imposed,  without  its  being  necessary 
that  he  should  have  actual  possession. 

2  A.  169. 

Art.  3249. — The  mortgage  is  a  legal  right  on  the  property  bound 
for  the  discharge  of  the  obligation. 

It  is  in  its  nature  indivisible,  and  prevails  over  all  the  immovables 
subjected  to  it,  and  over  each  and  every  portion. 

It  follows  them  into  whatever  hands  they  pass. 

10  L.  244;  15  L.  597;  16  L.  163;  IK.  235;  5K.  49G;  lOE.  28;  8  A.  144 

Art.  3250. — The  mortgage  only  takes  place  in  such  instances  as  are 
authorized  by  law. 

2  A.  251,  790. 

Art.  3251. — The  mortgage  is  accessory  to  a  principal  obligation, 
which  it  is  designed  to  strengthen,  and  of  which  it  is  to  secure  the  exe- 
cution. 

6  N.  S.  636 ;  4  L.  326 ;  15  L.  5S8,  596 ;  16  L.  254 ;  1 9  L  480 ;  3  R.  389 ;  2  A.  473 ;  ;t  A.  714. 

Art.  3252. — Consequently  it  is  essentially  necessary  to  the  existenco 


423  OF  MORTGAGES.  423 

of  a  mortgage,  that  there  shall  be  a  principal  debt,  to  serve  as  a  founda- 
tion for  it. 

Hence  it  happens,  that  in  all  cases  where  the  principal  debt  is  ex- 
tinguished, the  mortgage  disappears  with  it. 

Hence  also  it  happens  that,  when  the  principal  obligation  is  void, 
the  mortgage  is  likewise  so  ;  this,  however,  is  to  be  understood  with  cer- 
tain restrictions  which  are  established  hereafter. 

19  L.  478;  Sco  15  L.  596;  4  R.  416. 

Art.  3233. — Mortgage  is  conventional,  legal,  or  judicial. 

2  A.  790. 

Art.  3254. — Conventional  mortgage  is  that  which  depends  on  cove- 
nants. 

Legal  mortgage  is  that  which  is  created  by  operation  of  law. 

Judicial  mortgage  is  that  which  results  from  judgments, 

Art.  3255. — Mortgage,  with  respect  to  the  manner  in  which  it  binds 
property,  is  divided  into  general  mortgage  and  special  mortgage. 

General  mortgage  is  that  which  binds  all  the  property,  present  and 
future,  of  the  debtor. 

Special  mortgage  is  that  which  binds  only  certain  specified  property. 

Art.  3256. — The  following  objects  alone  are  susceptible  of  mort- 
gage: 

1.  Immovables  subject  to  alienation,  and  their  accessories  considered 
likewise  as  immovables ; 

16  L.  235 ;  2  A.  790. 

2.  The  usufruct  of  the  same  description  of  property  with  its  acces- 
sories, during  the  time  of  its  duration; 

3.  Slaves; 

4.  Ships  and  other  vessels. 

TL.  4S6,  490;  11  R.  225;  See  16  L.  23-3. 


Sectiox  I. —  Of  Convoitiunal  Mortgages. 

Art.  3257. — The  conventional  mortgage  is  a  contract,  bv  which  a 
person  binds  the  whole  of  his  property  or  a  portion  of  it  only,  in  favor 
of  another,  to  secure  the  execution  of  some  engagement,  but  without 
divesting  himself  of  the  possession. 

2  A.  251,790;  4  A.  65. 

Art.  3258. — A  mortgage  may  be  stipulated  for  the  fulfilment  of  any 
obligation  whatever,  even  for  the  completion  of  a  deed. 

4  L.  24S. 

Art.  3259. — A  mortgage  may  be  given  for  an  obligation  which 
has  not  yet  risen  into  existence,  as  when  a  man  grants  a  mortgage  by 
way  of  security  for  indorsements  which  another  promises  to  make  for 
him. 

4  L.  249 ;  8  L.  276,  631 ;  16  L..374 ;  9  R.  4S2 ;  10  R.  3S3;  2  A.  249,  971. 

Art.  32G0. — But  the  right  of  mortgage,  in  this  case,  shall  only 
be  realized  in  so  far  as  the  proijiise  shall  be  carried  into  effect  by  tlie 
person  making  it.  The  fulfilment  of  the  promise,  however,  shall  impart 
to  the  mortgage  a  retrospective  effect  to  the  time  of  the  contract. 

10  K.  888;  2A-9T1;  5  A.  231. 


424  OF  MORTGAGES. 

Art.  3261. — A  mortgage  may  be  given  for  a  part  only  of  the  princi- 
pal obligation. 

Art.  3262. — It  is  not  necessary  that  the  mortgage  should  be  given 
by  the  person  contracting  the  principal  obligation ;  it  may  be  given  for 
the  contract  of  a  third  person. 

1  A.62. 

Art.  3263. — When  a  person  has  given  a  mortgage  on  his  property 
for  the  obligation  of  a  third  party,  it  is  necessary  to  inquire  ■whether  he 
only  gave  the  mortgage,  or  whether  he  bound  himself  personally  for  the 
fulfilment  of  tlie  obligation. 

1  A.  C2. 

Art.  3264. — In  the  former  case,  that  is,  if  he  has  only  mortgaged 
his  property  to  secure  the  fulfilment  of  an  obligation  b}'  a  third  person, 
no  riglit  of  action  exists  against  him  personally,  but  merely  an  action  of 
mortgage  against  the  thing,  to  have  it  seized  and  sold,  so  that  if  it 
perishes,  he  who  mortgaged  it,  shall  be  released  from  every  species  of 
obligation. 

4L.  125;  1  A.  62. 

Art.  3265. — On  the  otlier  hand,  if  the  person  who  lias  given  amort- 
gage  for  another,  has  bound  himself  personally  for  the  fulfilment  of  the 
obligation,  independently  of  the  mortgage  there  shall  exist  against  him 
a  right  of  personal  action,  and  he  shall  not  be  released,  even  if  the  thing 
mortgaged  should  perish. 

1  A.  C2. 

Art.  3266. — Although  the  nullity  of  the  principal  obligation  includes 
that  of  mortgage,  this  is  to  be  understood,  with  respect  to  a  person 
giving  a  mortgage  for  another,  only  in  so  far  as  the  principal  obligation 
is  rescinded  by  an  absolute  nullity ;  for  if  the  principal  debtor  has  only 
obtained  a  rescission  by  a  plea  merely  personal,  such  as  minority  or  co- 
verture, the  mortgage  given  for  him  by  a  third  person  is  not  less  valid, 
and  shall  liave  its  full  and  entire  effect. 

Art.  3267. — Conventional  mortgages  can  only  be  agreed  to  by  those 
who  have  the  power  of  alienating  the  property  which  they  subject  to 
them. 

Art.  3268. — Such  as  only  have  a. right,  that  is  suspended  by  a  con- 
dition and  may  be  extinguished  in  certain  cases,  can  only  agree  to  a 
mortgage,   sulyi'ct  to  the  same    conditions,    and    liable    to    the    same 

extinction. 

See  12  R.  450. 

Art.  3269. — The  property  of  minors,  of  persons  under  interdic- 
tion, of  absentees  and  corporations,  cannot  be  mortgaged  by  contract,  in 
any  other  form  and  manner  than  that  directed  by  law. 

Art.  3270. — An  attorney  can  only  hypothecate  the  property  of  his 
principal,  so  far  as  he  has  a  special  power  for  that  purpose. 

Nevertheless,  if  the  attorney,  on  effecting  a  loan  for  his  principal, 
had  granted  a  mortgage,  and  the  latter  had  received  the  money  for  the 
loan,  or  if  it  had  been  usefully  employed  for  his  benefit,  the  principal 
would  be  bound  to  ratify  the  mortgage,  and  might  be  compelled  to  exe- 
cute it. 

Art.  3271. — If  a  person  contracting  an  obligation  towards  another, 


425  OF  MORTGAGES,  425 

grants  a  mortgage  on  property  of  wliicli  he  is  not  then  owner,  this  mort- 
gage shall  be  valid,  if  the  debtor  should  ever  after  acquire  the  owner- 
ship of  tlie  property,  by  whatever  right. 

Art.  3272. — A  conventional  mortgage  can  only  be  contracted  by 
an  act  passed  in  the  presence  of  a  notary  and  two  witnesses,  or  by  an 
act  under  private  signature.  No  proof  can  be  admitted  of  a  vei'bal 
mortgage 

Hypothecations  of  ships  and  other  vessels,  are  made  according  tp 
the  laws  and  usages  of  commerce. 

7  L.  487,  490 ;  Seo  2  L.  571 ;  14  L.  535. 

Art.  3273. — To  render  a.  conventional  mortgage  valid,  it  is  neces- 
cary  that  the  act  establishing  it  shall  state  precisely  the  nature  and  situ- 
ation of  each  of  the   immovables  on  which  the  mortgage  is  granted. 

2  A.  409 ;  5  A.  123. 

Art.  3274. — If  it  be  slaves  who  are  mortgaged,  their  names,  sex, 
and,  as  nearly  as  may  be,  their  age  and  nation,  must  be  mentioned  in 
the  act  of  mortgage,  that  their  persons  may  be  more  easily  identified. 

2A4G9;  5  A.  123. 

Art.  3275. — A  debtor  may  mortgage  his  whole  present  property,  or 
only  a  specific  part,  but  in  either  case,  it  ought  to  be  expressly  enume- 
rated, as  it  is  said  in  the  two  preceding  articles. 

5  A.  123. 

Art.  3276. — Future  property  can  never  be  the  subject  of  conven- 
tional mortgage. 

3R.  513;  4R.  231. 

Art.  3277. — To  render  a  conventional  mortgage  valid,  it  is  neces- 
sary that  the  exact  sum,  for  which  it  is  given,  shall  bo  declared  in  the 
act. 

9  R.  482 ;  2  A.  249,  790 ;  3  A.  112. 

Art.  3278. — The  conventional  mortgage,  when  once  established  on 
an  immovable,  includes  all  the  iinproyements  which  it  may  afterwards 
receive. 

8  A.  600 ;  See  14  L.  531. 


Section  II. — Of  Legal  Mortgages. 

Art.  3279. — The  law  alone,  in  certain  cases,  gives  to  the  creditor  a 
mortgage  on  the  property  of  his  debtor,  without  its  being  requisite  that 
the  parties  should  stipulate  it :  this  is  called  legal  mortgage. 

It  is  called  also  tacit  mortgage,  because  it  is  established  by  the  law 
without  the  aid  of  any  agreement. 

Art.  3280. — No  legal  mortgage  shall  exist,  except  in  the  cases  de- 
termined by  the  present  code. 

6  L.  298 ;  18  L.  73 ;  8  R.  181 ;  4  A.  465 ;  Seo  2  L.  92, 112. 

Art.  3281. — The  rights  and  credits  on  which  legal  mortgage  is 
founded,  arc  those  enumerated  in  the  following  articles. 

Art.  3282. — Minors,  persons  interdicted  and  absentees,  have  a  legal 
mortgage  on  the  property  of  their  tutors  and  curators,  as  a  security  for 


426  .OF  MORTGAGES. 

their  administration,  from  the  day  of  their  appointment,  until  the  liqui- 
dation and  settlement  of  their  final  account. 

And  tlie  tutors  and  curators  of  such  persons  have  a  like  mortgage 
on  their  property,  as  a  security  for  the  advances  which  they  may  have 
made. 

11  L.  413;  3  A.  5S;  6  A.  418. 

Art.  3283. — There  is  a  legal  mortgage  on  the  property  of  persons, 
who,  without  having  been  appointed  tutors  and  curators  of  minors,  inter- 
dicted or  absent  persons,  interfere  in  the  administration  of  their 
property,  reckoning  from  the  day  on  which  the  first  act  of  interference 
was  done. 

5  L.  355;  11  L.  409;  13  L.  2;  2  E.  445;  2  A.  SS5. 

Art.  3284. — The  children  of  a  previous  marriage,  where  the  mother 
has  married  again,  without  convoking  an  assembly  of  the  famil}',  to  de- 
termine whether  or  not  they  shall  remain  under  her  tutelage,  have  a 
legal  mortgage  on  the  property  of  the  last  husband,  for  the  acts  of  the 
tutorship  thus  unlawfully  kept  by  the  mother,  reckoning  from  the  day 
on  which  the  new  marriage  took  place. 

13  L.  24S. 

Art.  3285. — When  either  of  the  parents  of  a  minor  shall  cause  to 
be  adjudicated,  to  him  the  property  which  lie  possessed  in  common  with 
the  minor,  the  property  thus  adjudged  remains  tacitly  and  specially 
mortgaged  in  the  minor's  favor,  for  the  payment  of  the  price  of 
adjudication  and  interest,  reckoning  from  the  day  on  which  it  was 
adjudged. 

13  L.  24S. 

Art.  3286. — There  is  a  legal  mortgage,  reckoning  from  the  closing 
of  the  inventory,  on  the  property  of  the  surviving  liusband  or  wife,  or 
heirs,  who  have  been  invested  by  the  inventory  with  the  care  of  the 
property  of  the  community,  or  succession,  until  they  are  relieved  from 
their  eai'e,  or  a  partition  has  been  made. 

Art.  3287. — The  wife  has  a  legal  mortgage  on  the  property  of  her 
husband  in  the  following  cases  :     . 

1.  For  the  restitution  of  her  dowry,  and  for  reinvestment  of  the 
dotal  property  sold  by  her  husband,  and  which  she  brought  in  marriage, 
reckoning  from  the  celebration  of  tlie  marriage ; 

2.  For  tlie  restitution  or  reinvestment  of  dotal  property,  which  came 
to  her  after  the  marriage,  either  by  succession  or  donation,  from  the 
day  the  succession  was  opened,  or  the  donation  perfected. 

11  L.  23 ;  See  2  L.  543 ;  4  L.  55G,  559 ;  IG  L.  272  ;  4  E.  453 ;  10  E.  79. 

Art.  3288. — The  creditor  who  has  a  legal  mortgage,  except  in  the 
«ase  where  certain  specific  property  is  subjected  to  it,  may  exercise  his 
right  on  all  the  immovables  and  slaves  belonging  to  his  debtor,  and  on 
such  as  may  subse({ueutly  belong  to  him. 

Sec  2  L.  92. 

Section  III. — Of  Judicial  Mortgages. 

Art.  3289. — The  judicial  mortgage  is  that  resulting  from  judg- 
ments, whether  these  be  rendered  on  contested  cases  or  by  default, 
whether  they  be  final  or  provisional,  in  favor  of  the  person  obtaining 
them, 

9  •  6  A.  225. 


427  OF  MORTGAGES.  427 

Art.  3290. — The  judicial  mortgage  takes  effect  fi-om  the  day  on 
which  the  judgment  is  pronounced,  if  it  has  been  recorded  in  the  man- 
ner hereafter  directed. 

Art.  3291. — If  there  be  an  appeal  from  the  judgment,  audit  is  con- 
firmed, the  mortgage  relates  back  to  the  day  when  the  judgment  was 
rendered. 

Art.  3292. — When  on  the  appeal  the  judgment  has  only  been  re- 
versed in  part,  the  mortgage  still  exists  for  that  part  which  has  not  been 
altered  or  revised. 

Art.  3293. — The  awards  of  arbitrators  give  rise  to  a  mortgage,  only 
from  the  day  of  their  homologation. 

Art.  3294. — A  mortgage  results  from  judgments  rendered  in  other 
States  of  the  Union  or  in  foreign  countries,  only  in  so  far  as  their  exe- 
cution has  been  ordered  by  a  tribunal  of  this  State,  in  the  manner  pre- 
scribed by  the  law. 

5  A.  225. 

Art.  3295. — Judgments  obtained  against  a  person  deceased,  only 
bear  a  mortgage  on  the  personal  property  of  the  heir,  from  the  day  on 
which  execution  shall  have  issued  against  the  heirs  by  virtue  of  such 
judgments. 

Art.  3296. — The  judicial  mortgage  may  be  enforced  against  all  the 
immovables  and  slaves  which  the  debtor  actually  owns,  or  may  subse- 
quently acquire. 

6  A.  397. 


Section  IV. —  Of  the  Kanh  in  which  Mortgages  stand  with  respect  to 

each  other. 

Art.  3297. — Among  creditors,  the  mortgage,  whether  conventional, 
legal  or  judicial,  has  force  only  from  the  time  of  recording  it,  in  the 
manner  hereafter  directed,  except  in  the  cases  mentioned  below. 

2  A.  7T4 ;  See  11  E.  171. 

Art.  3298. — A  mortgage  exists  without  being  recorded,  in  favor  of 
minors,  interdicted  and  absent  persons,  on  the  property  of  their  tutors, 
curators,  and  otliers  over  whose  property  the  law  grants  them  a  tacit 
mortgage,  either  general  or  special. 

The  mortgage  of  tlie  wife  on  the  property  of  her  husband  for  her 
dotal  rights,  does  also  exist  witliout  being  recorded. 

10  L.  300;  2  A.  774;  4  A.  227 

Art.  3299. — The  tutors  and  curators  of  minors,  interdicted  and 
absent  persons,  as  well  as  husbands,  are  bound  to  render  public  the  le- 
gal mortgages  witli  which  their  property  is  burdened,  and  for  this  pur- 
pose, to  re(iuire  that  the  acts,  on  which  these  mortgages  are  founded, 
shall  be  recorded  without  delay,  in  the  office  provided  for  tliat  purpose. 

Art.  3300. — Husbands  and  tutors,  wlio  have  neglected  to  cause  to 
bo  made  the  recording  directed  in  tlie  preceding  article,  and  shall  have 
granted  or  allowed  to  be  taken  any  privilege  or  mortgage  on  their  im- 
movables and  slaves,  without  expressly  declaring  that  their  property 


428  OF  MORTGAGES. 

was  subjected  to  the  legal  mortgage  of  their  wives,  or  of  the  persons 
above  mentioned  whose  property  they  are  administering,  shall  be  con- 
sidered guilty  of  fraud,  and  shall  pay  to  the  party  suffering  by  it  such 
damages  as  the  nature  of  the  case  may  require. 

Art.  3301. — The  subrogated  tutors  and  curators  for  the  causes  of 
minors,  shall  be  bound  personally,  and  under  the  penalty  of  damages, 
to  sec  that  the  records  are  made,^without  delay,  of  the  mortgages  incur- 
red by  the  tutors  and  curators  of  those  minors,  for  tlie  fidelity  of  their 
administration. 

Art.  3302. — To  prove  that  mortgages  exist  on  the  property  of  a 
tutor  or  curator  of  a  minor,  interdicted  or  absent  person,  it  shall  suffice 
to  record  in  the  office  of  mortgages  a  certificate  from  the  judge  who  ap- 
pointed such  tutor  or  curator,  declaring  the  fact  of  appointment  and  the 
amount  of  the  appraisement,  by  the  inventory,  of  the  property  confided 
to  his  administration. 

1  A.  '219. 

Art.  3303. — To  give  publicity  to  the  legal  mortgages  which  wives 
have  over  their  husbands'  property,  for  the  dower  which  shall  be  allotted 
to  them,  the  husband  shall  record  at  the  office  of  mortgages  : 

1.  The  contract  of  marriage,  or  any  other  act  which  may  serve  to 
show  the  sums  of  money,  or  other  property  which  the  wife  may  have 
brought  by  way  of  dower,  at  the  time  of  marriage   ; 

2.  The  receipts,  or  other  acts  serving  to  show  the  amount  of  money 
or  other  property  which  came  to  the  wife  on  the  same  account,  and 
which  he  has  during  the  marriage  received,  whether  this  property  arose 
from  donations  made,  or  inheritances  fallen  to  the  wife. 

Art.  3304. — In  case  of  neglect  on  the  part  of  husbands,  tutors, 
subrogated  tutors  and  curators,  in  causing  to  be  made  the  recording  or- 
dained by  the  preceding  articles,  it  niiay  be  demanded  by  the  relations 
of  the  husband,  or  of  the  wife,  and  by  the  relations  of  the  minor,  inter- 
dicted or  absent  persons,  or  in  default  of  relations,  by  their  friends. 

It  may  even  be  demanded  by  minors  and  married  women,  without 
any  need,  on  the  part  of  the  latter,  of  authority  from  husbands  or 
judges. 

Art.  3305.-^ When,  by  the  marriage  contract,  the  parties,  being  of 
ao-e,  shall  agree  that  the  recording  shall  exist  only  on  one  or  more  im- 
movables belonging  to  the  husband,  the  immovables  and*  other  proper- 
ty not  included  shall  remain  free  and  released  from  mortgage  for  the 
wife's  dower ;  but  it  cannot  be  stipulated  that  no  recording  shall  be 
made. 

11  L.  28. 

Art.  3306. — The  case  shall  be  the  same  with  respect  to  the  immov- 
able property  of  the  tutor  or  curator  of  the  minor,  interdicted  or  absent 
person,  when  the  judge  shall  have  authorized  them,  in  the  manner  pre- 
scribed by  law,  to  hypothecate  a  specific  portion  of  their  property  by 
way  of  security  for'  their  administration,  as  it  is  provided  in  the  title  of 
minors,  their  tutorship,  curator  si tij),  Sfc. 

Art.  3307. — In  the  cases  specified  in  the  two  preceding  articles,  the 
husband,  tutor,  curator,  subrogated  tutor  and   curator  ad  htes,  need 


429  OF  MORTGAGES.  409 

only  deniand   that  the   inscription  on  record  shall  be  made  for  the  im- 
movables specially  mortgaged. 

AuT.  ooOS. — If  the  mortgage  has  not  been  restricted  at  the  time  of 
appointing  the  tutor  or  curator,  and  if  it  be  notorious  that  it  exceeds 
the  amount  in  which  it  is  necessary  for  him  to  give  security,  it  shall, 
at  his  request,  be  restricted  to  certain  immovables  which  he  shall 
point  out,  provided  they  are  thought  sufficient  to  afford  a  complete 
guaranty. 

1  L.  343 ;  14  L.  478,  4S4. 

Art.  3309. — This  request  shall  be  made  as  in  opposition  to  the  sub- 
rogated tutor,  or  the  curator  ad  litcs  of  a  minor,  or  against  a  curator 
ad  hoc  appointed  by  the  court  for  an  interdicted  or  absent  person,  and 
the  judge  shall  receive  tlie  special  mortgage  offered,  if  he  thinks  it 
sufficient,  and  with  the  advice  of  the  family  meeting,  in  the  case  of  a 
minor  or  person  under  interdiction. 

14  L.  478,  484 

Art.  3310. — The  husband  also,  with  the  consent  of  his  wife,  if  she 
be  of  age,  may  demand  that  the  general  mortgage  on  all  his  immov- 
ables and  slaves,  on  account  of  the  dower  and  other  claims  enjoying 
the  same  right,  shall  be  restricted  to  the  immovables  which  lie  shall 
indicate,  and  which  he  shall  offer  to  mortgage  specially  for  the  preser- 
vation of  his  wife's  rights. 

Sec  11  L.  27. 

Art.  3311. — The  judge,  to  whom  this  demand  is  made,  may  au- 
thorize the  husband  to  give  this  special  mortgage,  if  he  thinks  it  suffi- 
cient, with  the  assent  of  five  of  the  nearest  relations  of  the  v/ife,  as- 
sembled in  family  meeting. 

See  11  L.  27 

Art.  3312. — If  the  wife  be  a  minor,  the  judge  may  still  grant  the 
authority,  provided  it  be  with  the  assent  of  a  family  meeting,  composed 
as  in  the  preceding  article,  and  of  a  curator  ad  hoc  appointed  to  the 
wife. 

See  11  L.  27. 

Art.  3313. — In  all  cases  where  the  judge  restricts  the  mortgage  to 
certain  immovables,  the  records  or  inscriptions  made  on  the  other  pro- 
perty, shall  be  erased. 


CHAPTER  II. 

OF    INSCRIPTION    OF    MORTGAGES. 

Section  I. — Of  the  Mode  and  Ejfcct  of  Recording  Mortgages. 

Art.  3314. — Conventional  mortgage  is  acquired  only  by  consent  of 
the  parties ;  and  judicial  and  legal  mortgages,  only  by  the  effect  of  a 
judgment,  or  by  operation  of  law. 

6  L.  147 ;  11  R.  4;  2  A.  100,  77G ;  4  A.  ?27 ;  5  A.  225. 

But  these  mortgages  are  only  allowed  to  prejudice  third  persona, 


430  OF  MORTGAGES. 

when  tliey  have  been  publicly  inscribed  on  records  kept  for  that  purpose 
and  in  the  manner  hereafter  directed. 

6  L  398 ;  12  L.  104 ;  4  A.  227. 

Art.  3315. — By  the  words  third  2)cr sons  used  in  the  foregoing  arti 
cle,  are  to  be  understood  all  persons  who  are  not  parties  to  the  act  or  to 
the  judgment  on  which  the  mortgage  is  founded,  and  who   have   dealt 
with  the  debtor   cither  in  ignorance   or  before  the    existence  of  this 
right. 

6  L.  145 ;  1  A.  219 ;  2  A.  100,  TTG ;  See  S320. 

Art.  3316. — Consequently,  neither  the  contracting  parties  nor  their 
heirs,  nor  those  who  were  witnesses  to  the  act  by  which  the  mortgage 
was  stipulated,  can  take  advantage  of  the  non-inscription  of  the  mort- 
gage. 

1  A.  219;  2  A.77G. 

Art.  3317. — All  mortgages,  whether  conventional,  legal  or  judicial, 
are  required  to  be  recorded  in  the  manner  hereafter  provided. 

6L.  143;  11  K.  171.. 

Art.  3318. — The  inscription  of  mortgages  only  binds  the  property 
of  the  debtor,  when  it  has  been  made,  with  regard  to  immovables,  in 
the  ofl&ce  of  mortgages  for  the  parish  w'here  the  property  lies ;  and  with 
regard  to  slaves,  in  the  ofl&ce  of  mortgages  for  the  parish  where  the  debt- 
or has  his  domicil  or  usual  residence. 

If  the  debtor  has  immovable  property  lying  in  more  than  one  par- 
ish, the  inscription  ought  to  be  made  in  the  ofl&ce  of  mortgages  for  each 
of  them. 

6  L.  148 ;  11  E.  20 ;  3  A.  478  ;  6  A.  897. 

Art.  3319. — The  inscription  thus  made  shall  have  effect  against 
third  persons,  from  the  day  on  which  the  act  was  passed,  or  the  judg- 
ment rendered,  if  the  inscription  was  made  within  six  days,  reckoning 
from  the  date  of  the  act  or  of  the  signing  of  the  judgment,  if  the  ofl&ce  in 
which  it  is  to  be  made,  is  situated  in  the  place  where  the  act  was  made,  or 
the  judgment  rendered,  or  within  two  leagues  distance. 

One  day  is  added  for  every  two  leagues  between  the  place  where 
the  ofl&ce  is  situated  and  the  place  where  the  act  was  passed  or  the  judg- 
ment rendered. 

St-at.  2Uh  March,  1831,  p.  88. — ^  2.  The  article  three  thousand  three 
hundred  and  nineteen,  of  the  Civil  Code,  be,  and  the  same  is  hereby 
repealed. 

CL.  148;  3  A.  478. 

Art.  3320. — If,  on  the  other  hand,  the  creditor  allows  the  time  to 
elapse  without  causing  the  act  or  judgment  to  be  recorded,  his  mortgage 
shall  have  effect  against  third  persons  dealing  in  good  faith,  only  from 
the  day  when  he  shall  have  caused  the  inscription  to  be  made. 

But  this  inscription  he  may  have  made  at  any  time,  without  having 
recourse  to  a  court  of  justice,  and  on  presenting  an  authentic  copy  of 
the  act  or  judgment. 

6  L.  147 ;  Seo  3314,  et  seq. 

Art.  3321. — The  creditors,  whose  inscriptions  have  been  made  on 
the  same  day,  possess  a  concurrent  mortgage,  and  no  distinction  is  made 


431  OF  MORTGAGES.  431 

between  the  inscription  made  in  the  morning  and  that  made  in  the  even- 
ing, even  although  the  recording  officer  may  have  noted  the  difference. 

Art.  3322. — Where  the  mortgage  has  been  given  by  an  act  under 
private  signature,  as  this  act  bears  no  certain  date,  it  shall  only  have 
effect  against  third  persons  from  the  day  of  its  inscription,  unless  it 
was  duly  recorded  with  a  notary  public,  on  the  day  on  which  it  was 
passed. 

Art.  3323. — Mortgages  given  and  inscribed  within  three  months 
previous  to  the  failure  of  the  debtor,  shall  be  declared  null,  as  presum- 
ed to  be  given  in  fraud  of  other  creditors,  unless  the  person,  in  whoso 
favor  the  mortgage  was  granted,  shall  prove  that  he  paid,  in  obtaining 
it,  a  real  effective  value  at  the  moment  of  the  contract. 

4  L.  T54;  6  L.  145:  11  L.  118;  15  L.  liS. 

Art.  3324. — The  word  fravd  used  in  the  foregoing  article,  means 
any  unfair  preference  which  the  debtor  may  give  to  one  of  his  creditors 
over  the  others,  by  selling  or  mortgaging  to  him  a  portion  of  his  pro- 
perty for  a  debt  existing  before  the  contract. 

Art.  3325. — The  inscription  of  a  judgment,  obtained  against  a  debt- 
or within  ten  days  preceding  his  failure,  shall  have  no  effect  against 
the  other  creditors  of  the  debtor,  if  it  appears,  from  the  time  at  which 
the  suit  was  commenced,  and  the  manner  in  which  it  was  conducted, 
that  the  debtor  intended  to  favor  the  plaintiff,  either  by  consenting 
that  judgment  should  be  rendered  against  him  without  the  usual  delays, 
or  by  not  making  a  defence,  or  by  confessing  judgment  when  the  cause 
admitted  of  contest. 

11  L.  1'21 ;  See  12  K.  141. 

Art.  3326. — An  inscription  made  after  the  ftxilure  or  on  the  day 
preceding  it,  shall  have  no  effect  whatever  against  other  creditors. 

9  L.  Sol ;  11  L.  121 ;  2  A.  799 ;  See  9  L.  184. 

Art.  3327.—  If  a  succession,  which  is  administered  by  a  curator  or 
bene6ciary  heir,  is  not  sufficient  to  satisfy  the  creditors,  an  inscription 
made  by  one  of  them,  after  it  is  opened,  shall  have  no  effect  against  the 
others. 

9L.  354;  See  12  R.  243. 

Art. — 3328. — Every  notary,  who  shall  pass  an  act  of  sale,  mortgage 
or  donation  of  an  immovable  or  slave,  shall  be  bound  to  obtain  from 
the  office  of  mortgages  of  the  place  where  the  immovable  is  situated, 
or  where  the  seller,  debtor,  or  donor  has  his  domicil,  if  it  be  of  a  slave, 
a  certificate  declaring  the  privileges  or  mortgages  Avhich  may  be  inscrib- 
ed on  the  object  of  the  contract,  and  to  mention  them  in  his  act,  under 
penalty  of  damages  towards  the  party  who  may  suffer  by  his  neglect  in 
that  respect. 

8  R.  400 ;  2  A.  100. 

Art.  3329. — If  a  person,  who  has  given  a  mortgage  on  his  property, 
takes  advantage  of  the  neglect  to  register  the  mortgage,  and  engages 
the  same  property  afterwards  to  another  person,  without  informing  him 
of  the  first  moi'tgage,  he  shall  be  considered  guilty  of  fraud,  and  shall 
1)0  subject  to  such  damages  towards  the  party  suffering  thereby,  as  the 
uaturc  of  the  case  may  require. 

2  A.  100. 


432  OF  MORTGAGES. 

Art.  3330. — To  obtaiu  an  inscription  of  a  public  act  or  judgment, 
the  creditor,  either  in  person,  or  by  an  agent,  shall  present  an  authentic 
copy  of  the  act  or  judgment  to  be  recorded,  to  the  register  of  mortgages 
of  the  place  where  the  inscription  is  to  be  made. 

5  A.  2-25 ;  6  A.  350. 

Art.  3331. — If  it  be  an  act  under  private  signature  bearing  a 
mortgage,  the  creditor  can  only  have  it  registered  by  presenting  an  au- 
thentic copy  of  the  registry  made  in  the  office  of  a  notav}-  public,  unless 
the  register  be  acquainted  with  the  signature  of  the  parties,  and  shall 
agree,  on  his  own  responsibility,  to  make  the  inscription,  on  the  original 
act  being  presented  to  him. 

2  A.  251 ;  5  A.  225. 

Art.  333:2. — The  inscription  of  acts,  on  wliich  privileges  are  found- 
ed, when  they  are  subjected  to  this  formality,  as  also  donations,  shall 
be  made  in  the  same  manner  as  that  of  mortgages. 

4  A.  471 ;  6  A.  850. 

Art.  3333. — The  registry  preserves  the  evidence  of  mortgages  and 
privileges,  during  ten  years,  reckoning  from  the  day  of  their  date  :  their 
effect  ceases,  even  against  the  contracting  parties,  if  the  inscriptions 
have  not  been  renewed  before  the  expiration  of  this  time,  in  the  manner 
in  which  they  were  first  made. 

But  this  rule  does  not  obtain  with  regard  to  the  mortgages  to 
which  husbands  are  subjected  for  the  dower  and  other  claims  of  wives, 
and  tutors  and  curators  towards  minors,  interdicted  and  absent  persons, 
whose  estates  they  administer. 

Slat.  28th  April ,  1853,  No.  193.— The  reinscription  of  mortgages 
required  by  article  3333  of  the  Civil  Code,  shall  not  apply  to  mortgages 
now  recorded  or  wliich  may  hereafter  be  given  and  recorded,  in  favor 
of  the  Commissioners  of  the  Poydras  legacy  out  of  the  funds  bequeath- 
ed by  the  late  Julien  Poydras,  to  the  indigent  girls  of  the  parishes  of 
West  Baton  Bouge  and  Pointe  Coupee. 

Stat.  1  \th  March,  1842,  p.  232. — Article  three  thousand  three  hun- 
dred and  thirty-three  of  the  Civil  Code  of  Louisiana  be,  and  the  same 
is  hereby  so  amended,  that  the  rule  requiring  the  reinscription  of  mort- 
gages at  the  expiration  of  ten  years  from  date  of  their  registry,  shall 
not  apply  to  the  mortgages  which  have  been  or  may  be  given  by  the 
stockholders  of  the  various  property  banks  of  this  State, 

Stat.  21th  Mardt,  1843. — Article  three  thousand  three  hundred 
and  thirty-three  of  the  Civil  Code  be  so  amended  that  it  shall  be  the 
duty  of  the  recorder  of  mortgages,  and  of  judges  performing  the  like 
duties,  to  cancel  and  erase,  on  the  simple  application,  in  Avriting,  to  that 
effect,  by  the  owner,  creditor  of  the  owner,  or  other  party  interested, 
all  inscriptions  of  mortgages  which  have  existed,  or  may  exist,  on  their 
record  for  a  period  exceeding  ten  years,  without  a  renewal  of  such  in- 
scriptions :  Provided,  however,  that  this  section  shall  not  apply  to 
mortgages  against  husbands  for  the  dotal  and  other  claims  of  their 
wives,  to  mortgages  against  tutors  and  curators,  in  favor  of  minors,  in- 


433  <^F  MORTGAGES.  433 

terdicted  or  absent  persons,  nor  to  such  mortgages  in  fiivor  of  tlic  pro 
perty  banks. 

13  L.  23b ;  11  K.  20 ;  I  A.  219 ;  2  X.  100, 520,  76S,  776,  799  ;  4  A.  471 ;  6  A.  471. 

Art.  3334. — It  shall  be  the  duty  of  notaries,  and  other  public  offi- 
cers acting  as  such,  to  cause  to  be  recorded  without  delay  all  acts  creat- 
ing mortgages,  which  shall  be  executed  by  them,  whether  such  mortgages 
be  conventional  or  legal. 

It  shall  also  be  the  duty  of  judges  to  cause  to  be  recorded  all  legal 
mortgages  resulting  from  appointments  made  by  them  of  tutors  or  cura- 
tors of  minors,  of  interdicted  persons  or  absentees;  and  in  default 
thereof  such  notaries  or  judges  shall  be  liable  to  an  action  in  damages, 
and  even  to  be  removed  from  office,  as  the  case  may  be. 

1  A.  219. 


Section  II. — Of  the  Erasure  of  Mortgages. 

Art.  3335. — Inscriptions  of  mortgages  and  privileges  are  erased  by 
the  consent  of  the  parties  interested  and  having  capacity  for  that  pur- 
pose ;  this  consent  to  be  evidenced  by  a  release,  or  by  a  receipt  given 
on  the  records  of  the  court  rendering  the  judgment  on  which  the  mort- 
gage is  founded. 

1  A.  219. 

Art.  333G. — Inscriptions  of  mortgages  and  privileges  may  be  also 
erased  by  virtue  of  a  judgment  ordering  such  erasure,  in  one  of  the 
cases  hereafter  enumerated. 

1  A.  219. 

Art.  3337. — This  erasure  shall  be  made  on  a  presentation  of  the 
acts,  receipts  and  judgments  which  opci*ate  a  release  of  the  mortgages 
and  privileges  to  be  erased,  in  the  same  manner  as  directed  for  their 
inscription. 

S/nt.  1843,  p.  105. — Hereafter  the  recorders  of  mortgages  f&r  the 
parishes  of  Orleans  and  Jefferson,  and  the  parish  judges  of  the  seve- 
ral parishes  of  this  State,  ex  officio  recorders  of  mortgages,  be  and 
they  are  hereby  authorized  and  re(juircd  to  cancel  from  their  records 
any  mortgages  for  which  a  release  may  have  been  granted  by  an  authen- 
tic act,  upon  the  mere  presentation  of  the  certificate  of  the  notary 
public  before  whom  such  act  was  executed,  or  his  successor  in  office, 
stating  that  by  said  act  a  release  was  granted  and  the  erasure  allowed; 
which  certificate  shall  be  filed  in  the  office  of  the  recorder  of  mortgages 
whera  such  cancelling  was  asked  for. 

Art.  3338. — If  the  release  has  been  given  by  an  act  under  private 
signature,  the  erasure  shall  only  take  place  on  the  presentation  of  an 
authentic  copy  of  the  registry  of  it,  made  in  the  office  of  a  notary  pub- 
lie,  unless  the  register  be  ac(iuaintcd  with  the  signature  of  the  party 
who  has  subscribed  the  act,  and  shall  agree,  on  his  own  responsibility, 
to  make  the  erasure  on  the  presentation  of  the  original. 

Art.  3339. — He  who  shall  have  subscribed  in  favor  of  another,  an 
act  bearing  a  mortgage  or  privilege,  to  secure  the  payment  of  a  debt  or 
the  execution  of  an  obligation,  may,  on  payment  of  the  debt,  or  perform- 
ance of  the  obligation,  rci^uire  of  the  creditor  a  release  of  the  mortgage 
28 


434  OF  MORTGAGES. 

or  privilege,  provided  he  will  defray  the  expense  of  the  act  which  it  may 
be  necessary  to  prepare  for  this  purpose  ;  and  if  the  creditor  refuse  to 
grant  this  release,  tlie  other  party  shall  have  an  action  to  compel  him 
to  grant  it,  and  he  shall  he  condemned  to  pay  the  costs. 

Art.  3340. — If  the  debt,  for  which  a  mortgage  has  been  granted,  or 
for  which  there  exists  a  privilege,  is  payable  at  several  terms^  the  debtor 
may,  on  the  payment  of  each  instalment,  require  a  release  from  the  cred- 
itor of  the  mortgage  or  privilege,  in  relation  to  the  instalments  thus  paid, 
on  the  terms  prescribed  in  the  foregoing  article. 

Art.  3341. — But  in  the  case  supposed  in  the  preceding  article,  and 
in  all  others  where  partial  releases  are  given,  the  mortgage  or  privilege 
shall  only  be  finally  erased  on  payment  of  the  last  instalment  of  the  debt, 
to  insure  which  payment  the  whole  jiroperty  burdened  shall  always  re- 
main bound,  until  the  complete  discharge  of  the  debt,  together  with  the 
interest  andr  costs  that  may  have  accrued. 

Art.  3342. — If  a  debtor,  who  had  given  a  mortgage  to  his  creditor 
on  a  certain  portion  of  his  j^roperty,  or  who  had  subscribed  in  his  favor 
an  act  importing  a  privilege,  has  neglected,  on  paying  the  debt,  which 
gave  rise  to  the  privilege  or  mortgage,  to  obtain  the  release  of  it,  and  if 
the  creditor  should  afterwards  absent  himself  from  the  State,  leaving 
behind  no  representative  or  attorney,  he  may  obtain  a  decree  for  this  re- 
lease from  any  competent  judge  of  the  creditor's  last  place  of  residence, 
by  proving  to  the  judge,  either  by  testimony  in  writing,  or  by  sufficient 
oral  testimony,  according  to  the  nature  and  amount  of  the  debt,  that  it 
has  been  fully  discharged. 

Art.  3343. — AVhen  such  a  demand  shall  be  made  before  a  judge  of 
the  last  place  of  residence  of  the  absent  creditor,  he  shall  direct  that 
such  creditor  be  cited  by  notices  in  French  and  English,  posted  up  at  the 
usual  places,  and  shall  appoint  a  person  to  represent  the  absent  creditor 
in  the  case. 

Art.  3344. — When  a  person,  who  has  obtained  a  judgment  on  which 
an  appeal  lies,  has  had  it  recorded,  if  this  judgment  is  afterwards  re- 
versed or  confirmed  in  part  only,  the  party,  against  whom  the  inscription 
had  been  made,  may,  on  motion  before  the  judge  who  rendered  the  judg- 
ment, after  due  notice  to  the  other  party,  obtain  an  order  for  the  erasure 
or  reduction  of  the  inscription,  as  the  case  may  require ;  and  if  it  be  a 
case  for  erasure,  it  shall  be  made  at  the  expense  of  the  party  making  the 
inscription. 

Art.  3345. — If  a  debtor,  who  has  granted  a  mortgage,  or  signed  an 
act  from  which  there  results  a  privilege,  has  given  notes  payable  to  order 
and  duly  marked,  as  hereafter  directed,  each  holder  of  such  notes  may, 
on  their  being  paid,  raise  the  mortgage,  or  release  the  privilege,  to  the 
amount  of  the  note  or  notes  thus  paid,  of  which  he  was  the  bearer. 

Art.  3346. — Even  the  drawer  of  these  notes  may,  if  he  has  paid  any 
of  them  in  bank,  or  in  the  holder's  hands,  obtain  from  the  notary  who 
affixed  his  mark  to  them,  as  hereafter  directed,  a  certificate  by  which  the 
said  notary  shall  declare  that  the  note  or  notes  were  secured  by  an  act 
importing  a  mortgage  or  privilege,  which  was  passed  before  him,  men- 


k 


435  OF  MORTGAGES.  43S 

tioniiig.  tlie  date  of  the  act,  the  name  of  the  contracting  parties,  and  the 
objects  which  were  subjected  to  the  mortgage  or  privilege;  and  the  reg- 
ister of  mortgages  shall,  on  the  presentation  of  this  certificate,  raise  the 
mortgages,  according  to  the  amount  of  the  notes  mentioned  in  the  cer- 
tificate, either  partially,  or  entirely,  as  hei'eafter  directed. 

Art.  3347. — Every  notary,  before  whom  an  acf  shall  been  made,  by 
which  notes  to  order  have  been  given  for  the  payment  of  a  debt  bearing 
a  privilege  or  mortgage,  shall  attest  each  of  the  notes  by  putting  his 
name  on  them,  mentioning  the  date  of  the  act  from  which  the  privilege 
or  mortgage  is  derived,  under  the  penalty  of  damages. 

4  A.  303. 

Art.  3348. — The  recorder,  to  whom  partial  releases  shall  be  pre- 
sented, resulting  from  payments  made  on  a  debt  bearing  a  privilege  or 
mortgage,  shall  make  mention  of  these  partial  releases  on  the  margin  of 
the  record  of  the  act  by  which  the  privilege  or  mortgage  is  secured,  but 
he  shall  not  erase  it  entirely,  until  the  whole  debt,  for  which  it  was  given, 
shall  have  been  discharged. 


Section  III. —  Of  the  Office  of  Mortgages  and  of  tlie  Duties  of  Recorders. ' 

Art.  3349. — There  is  established  in  each  parish  an  office  for  the  re- 
cording of  mortgages,  privileges  and  donations. 

Art.  3350. — This  office  is  kept  in  the  parish  of  Orleans  by  a  par- 
ticular officer,  called  the  Recorder  of  Mortgages. 

Out  of  the  parish  of  Orleans,  the  duties  of  this  recorder  arc  per- 
formed by  the  different  parish  judges,  within  the  limits  of  their  respec- 
tive jurisdictions. 

Art.  335 1. — The  recorder  of  mortgages  for  the  parish  of  Orleans  has 
his  office  in  the  city  of  New  Orleans,. and  must  keep  three  registers : 

The  first,  to  record  all  ixis  from  which  there  results  a  conventional 
or  legal  mortgage,  or  privilege  ; 

The  second,  to  record  all  judicial  mortgages; 

And  the  third,  to  record  all  donations  which  have  to  undergo  that 
tormality. 

Stat.  1826,  p.  162. — The  rccorder\of  mortgages  for  the  parish  of 
Orleans,  together  with  the  parish  judges  or  other  officers  fulfilling  the 
duties  of  recorders  of  mortgages  in  their  respective  parishes,  shall  not  be 
bound  to  keep  any  other  separate  register,  besides  the  several  registers 
mentioned  in  the  article  three  thousand  three  hundred  and  fifty-one  of 
the  Civil  Code  now  in  force  in  this  State,  which  it  is  made  their  duty  to 
keep,  than  that  mentioned  in  the  first  paragraph  of  the  article  three  thou- 
Band  three  hundred  and  fifty-four  of  the  Civil  Code  ;  and  that  the  second 
paragraph  of  the  said  article  three  thousand  three  hundred  and  fifty-four 
be  and  is  hereby  repealed.  Provided  that  it  shall  be  the  duty  of  the 
Baid  recorder  of  mortgages  for  the  parish  of  Orleans,  as  well  as  of  the 
several  parish  judges  fulfilling  the  duties  of  recorders  of  mortgages  in 


436  OF  MORTGAGES. 

their  respective  parishes,  always  to  keep  open  to  the  inspection  of  cverj 
person  who  may  wish  to  examine  the  same,  during  the  regular  office 
hours,  the  three  registers  mentioned  in  the  article  three  thousand  three 
hundred  and  fifty-one  of  the  Civil  Code. 

2  A.  SOO ;  6  A.  242. 

Art.  3352. — These  registers  shall  be  numbered  at  each  page,  and 
signed  ne  varietur,  oiVthe  first  and  last  pages,  by  the  judge  of  the  parish 
of  Orleans. 

5  A.  154;  6  A.  242. 

Art.  3353. — The  parish  judges  must  keep  the  same  number  of  reg- 
isters as  the  recorder  of  mortgages  for  the  parish  of  Orleans,  and  shall 
number  their  pages,  and  have  them  signed  ne  varicHir,  on  the  first  and 
last  pages,  by  the  judge  of  their  district,  or  two  justices  of  the  peace  for 
their  parish. 

2  A.  800;  5  A.  154. 

Art.  3354. — Besides  the  registers  above  mentioned,  the  recorder  of 
mortgages,  and  the  judges  performing  the  same  duties  in  the  different 
parishes,  shall  keep : 

1.  A  separate  register,  in  which  the}'  shall  set  down  from  day  to  day, 
and  according  to  their  date,  the  titles  of  the  different  acts  transmitted  to 
them  to  be  recorded,  for  the  purpose  of  establishing  with  exactness  the 
time  of  such  transmission  ; 

2.  A  book  numbered  and  signed  in  the  same  manner  as  their  rco;is- 
ters,  in  which  they  shall  insert,  in  regular  order,  a  summary  of  all  the 
acts  which  they  have  recorded. 

This  book  shall  be  open  to  the  inspection  of  all  persons  who  may 
wish  to  examine  it,  during  the  hours  the  office  is  kept  open,  but  it  cannot 
be  removed. 

5  A.  154;  See  Art.  8351,  and  amendment. 

Art.  3355. — In  no  case  can  the  recorder  of  mortgages  and  the  judges 
fulfilling  the  same  dvities,  refuse  or  delay  the  recording  of  the  acts  which 
are  presented  to  them  for  that  purpose,  or  the  delivery  of  the  certificates 
which  are  required  of  them,  as  hereafter  stated. 

2  L.  487 ;  1  A.  219. 

Art.  3356. — These  officers  shall  record  on  their  register  the  acts 
which  are  presented  to  them,  in  the  order  of  their  date,  and  without 
leaving  any  intervals  or  blank  space  between  them  ;  and  they  are  bound 
also  to  deliver  to  all  persons,  who  may  demand  them,  a  certificate  of  the 
mortgages,  privileges  or  donations,  which  they  may  have  thus  recorded ; 
if  there  be  none,  their  certificate  shall  declare  that  fact. 

1  L.  4S2 ;  2  L.  4S7 ;  1  A.  219. 

Art.  3357. — The  register  of  mortgages,  and  the  parish  judges  per- 
forming the  same  duty,  are  answerable  for  injury  resulting : 

1.  From  omitting  to  record  such  acts  as  ai*e  directed  to  be  recorded 
in  their  office ; 

2.  From  omitting  to  mention  in  their  certificates  one  or  several  acts 
existing  on  their  registers,  unless  in  this  latter  case  the  error  proceeds 
from  a  want  of  exactness  in  the  description,  which  cannot  be  imputed  to 
them, 

1  A.  219. 

Art.  3358. — The  register  of  mortgages  for  the  parish  of  Orleans 
shall  furnish  to  the  governor  of  the  State  one  or  more  sureties  to  the 


1 


437  OF  MORTGAGES.  437 

amount  of  forty  thousand  dollai-s,  for  the  faithful  execution  of  the  duties 
required  of  him  by  law,  and  for  the  payment  of  such  damages  as  may  be 
sustained  by  his  failure  to  discharge  such  duties. 

Art.  3359. — The  fees,  to  which  the  register  of  mortgages  and  the 
parish  judges  performing  the  same  duty,  are  entitled,  for  recording  acts 
delivered  to  them  and  giving  certificates,  are  regulated  by  special  laws. 


CHAPTER  ITT. 

OF    THE    EFFECTS    OF    MORTGAGES    AND    PRIVILEGES. 

Section  I. —  Of  the  Effects  of  Mortgages  and  Privileges  with  regard 

to  the  Debtor.  ^ 

Art.  3360. — The  mortgage  has  the  following  effects : 

1.  That  the  debtor  cannot  sell,  engage  or  mortgage  the  same  property 
to  other  persons,  to  the  prejudice  of  the  mortgage  which  is  already 
made  to  another  creditor  ; 

2.  That  if  the  mortgaged  thing  goes  out  of  the  debtor's  hands,  the 
creditor  ma}^  claim  it  in  whatever  hands  it  may  have  passed,  in  so  much 
that  the  third  possessor  of  it  is  obliged,  either  to  pay  the  debt  for  which 
the  thing  is  mortgaged,  or  to  leave  it  to  be  sold,  that  the  creditor  may 
be  paid  out  of  the  proceeds  thereof ; 

3.  That  the  mortgagee  has  the  benefit  of  being  preferred  to  the  mere 
chirographic  or  personal  creditors,  and  even  to  the  other  mortgagees 
who  are  posterior  to  him  in  the  date  of  their  mortgage  or  of  its  registry. 

Art.  3361. — When  the  things  mortgaged  are  in  the  debtor's  pos- 
session, the  creditor  may,  in  case  of  ftiilurc  of  payment,  proceed  against 
him  in  the  usual  manner,  by  citing  him  to  obtain  judgment  against  him, 
if  the  original  title  does  not  amount  to  confession  of  judgment,  and 
causing  afterwards  the  thing  mortgaged  to  be  seized  and  sold ;  and  if 
the  title  amounts  to  a  confession  of  judgment,  he  may,  on  his  oatli  that 
the  debt  is  due,  obtain  from  the  judge  an  order  for  an  immediate  seizure 
of  the  thing;  but  if  the  thing  mortgaged  is  out  of  the  debtor's  posses- 
sion, but  in  the  hands  of  a  tliird  possessor,  he  must  then  proceed  against 
this  third  possessor  by  what  is  called  the  action  of  mortgage,  as  is  di- 
rected in  the  following  section. 

7  N.  S.  514 ;  1  K.  295,  407 ;  2  A.  867. 

Section  II. — Of  the  Effect  of  Mortgages  agai?ist  third  Possessors^ 
and  of  the  Hypothecary  Action. 

Art.  3362. — The  creditors  who  have  either  a  privilege  or  mortgage 
on  immovable  property  or  on  slaves,  may  pursue  their  claims  on  them  in 
whatever  hands  they  may  happen  to  pass,  to  be  paid  out  of  their  pro- 
ceeds according  to  their  rank,  provided  that  their  titles  have  been  regis- 
tered according  to  law. 

Art.  3363. — The  third  possessor  of  the  immovable  property  or  slaves 
mortgaged,  is  bound  either  to  discharge  the  principal  together  with  all 


438  OF  MORTGAGES. 

interest  of  the  debt  for  which  the  property  was  mortgaged,  to  whatever 
sum  they  may  amount,  or  to  relinquish  the  propcrt}-,  without  any  reser- 
vation. 

Art.  3364. — In  case  the  third  possessor  fail  to  comply  with  either 
of  those  obligations,  every  mortgage  or  privileged  creditor  is  entitled  to 
cause  the  immovable  mortgaged  or  subject  to  privilege  to  be  sold,  if, 
thirty  days  after  amicable  demand  of  payment  from  the  debtor,  the  debt 
has  not  been  discharged. 

SeolSLSLS. 

AuT.  3365. — The  creditor  who  shall  institute  this  action  against  a 
third  possessor,  must  make  oath,  at  the  foot  of  his  petition,  that  the 
debt  for  which  he  prays  the  seizure  of  the  thing  on  Avhich  he  has  a  mort- 
gage or  privilege,  is  really  due  to  him,  and  that  he  has  demanded  pay- 
ment of  it  without  success,  thirty  days  before  he  presents  his  petition. 

AiiT.  3360. — The  third  possessor,  who  is  not  personally  liable  to  the 
debt,  may,  notwithstanding,  within  ten  days  from  his  being  served  with 
an  order  of  seizure,  oppose  the  sale  of  the  property  mortgaged,  which  is 
in  his  possession,  if  he  has  good  cause  to  show  in  support  of  such  oppo- 
sition, as  that  the  mortgage  has  not  been  registered  or  other  plea,  or  if 
there  is  other  property  mortgaged  for  the  same  debt  within  the  posses- 
eion  of  the  principal  debtor  or  debtors,  in  which  last  case  the  possessor 
may  demand  that  his  property  be  previously  discussed,  in  the  form  di- 
rected under  the  title  of  surctj/shij),  and  during  the  discussion  the  sale 
of  the  property  mortgaged  and  in  the  possession  of  the  third  person, 
shall  be  suspended. 

16  L.  231. 

AiiT.  3367. — The  plea  of  discussion  cannot  be  opposed  to  the  credi- 
tors, who  have  cither  a  privilege  or  a  special  mortgage  on  the  property 
found  within  the  possession  of  a  third  person. 

10  R.  45. 

Art.  3368. — The  third  person,  who  wishes  to  avoid  the  action  of 
mortgage,  may,  before  or  after  the  order  of  seizure,  declare  that  he  re- 
linquislies  the  property  aflfected  by  the  mortgage,  of  which  he  has  pos- 
session. 

This  relinquishment  may  be  made  by  all  third  possessors,  who  arc 
not  personally  bound  for  the  debt,  and  who  are  capable  of  alienating, 
and  it  dues  not  deprive  them,  before  the  sale,  of  the  right  of  retaking 
the  property  mortgaged,  which  was  in  their  possession,  on  discharging 
the  debt,  together  with  the  interest  and  costs. 

10  L.  231. 

Art.  3369. — The  act  of  relinquishment  shall  be  executed  before  a 
notary  public  in  the  presence  of  two  witnesses,  and  notified  to  the  credi- 
tor or  creditors  who  have  brought  the  hypothecary  action. 

On  the  petition  of  the  first  of  the  interested  persons  who  sues,  a  cu- 
rator is  appointed  to  the  property  relinquished,  and  under  him  the  sale 
of  the  property  is  conducted  in  the  manner  prescribed  by  law. 

Art.  3370. — Tlic  deteriorations,  which  proceed  from  the  deed  or 
neglect  of  the  third  possessor,  to  the  prejudice  of  the  creditors  who  have 
a  privilege  or  a  mortgage,  give  rise  against  the  former  to  an  action  of 


439  OF  MORTGAGES.  439 

indemnification ;  but  he  can  claim  for  Lis  expenses  and  improvements 
only  to  the  amount  of  the  increased  value  which  is  the  result  of  the  iui- 
provcment  made. 

4  L.  242. 

Art.  3371. — The  fruits  or  income  of  the  property  mortgaged  are 
due  by  the  third  possessor,  only  from  the  time  when  the  order  of  seizure 
was  served  on  him,  and  in  case  of  the  discontinuance  of  the  suit  during 
one  year,  only  from  the  day  when  a  new  order  of  seizure  shall  be  served 
on  him. 

3  A.  600. 

Art.  3372. — The  servitudes  and  incorporeal  rights  that  the  third  pos- 
sessor held  on  the  property  before  its  possession,  are  renewed  after  his 
relinquishment,  or  after  the  sale  in  execution  made  upon  him  His 
own  creditors,  after  those  who  held  their  titles  under  the  preceding 
proprietors,  exercise  their  rights  of  mortgage  in  their  order,  on  the 
property  relinquished  or  sold  at  auction. 

Art.  3373. — The  third  possessor,  who  has  either  discharged  the 
mortgage  debt,  or  relinquished  the  property  mortgaged,  or  suffered  it  to 
be  sold  in  execution,  has  an  action  of  warranty  against  the  principal 
debtor. 

1  E.  8C2. 


CHAPTER  IV. 

now    MORTGAGES    EXriRE    OR    ARE    EXTINGUISHED. 

Art.  3374. — Mortgages  are  extinguished  : 

1.  By  the  extinction  of  the  thing  mortgaged  ; 

4  E.  416. 

2.  By  the  creditor  acquiring  the  property  of  the  thing  mortgaged  ; 

3.  By  the  extinction  of  tlic  mortgagor's  right; 

9  L.  10;  4  A.  410 ;  See  12  E.  450. 

4.  By  the  extinction  of  the  debt,  for  which  the  mortgage  was  given; 

5.  By  the  creditor  renouncing  the  mortgage ; 

6.  By  prescription. 


440  OF  PRESCRIPTION. 

TITLE  XXIII. 

OF  OCCUPANCY,  POSSESSION,  AND  PRESCRIPTION 
CHAPTER  I. 

OF      OCCUPANCY. 

Art.  3375. — Occupancy  is  a  mode  of  acquiring  property  by  which 
a  thiug,  which  belongs  to  nobod}',  becomes  the  property  of  the  person 
who  took  possession  of  it,  with  the  intention  of  acquiring  a  right  of 
ownership  upon  it. 

AuT.  3376. — It  follows  from  the  above  definition  that  occupancy  can 
only  be  a  lawful  mode  of  acquiring  property,  when  the  thing  in  occu- 
pancy has  no  owner  ;  when  it  is  of  a  nature  which  admits  of  its  being 
taken  possession  of,  and  retained  by  the  acquirer  with  the  intention  of 
keeping  it  as  his  own  property. 

Art.  3377. — There  are  five  ways  of  acquiring  property  by  occu- 
pancy, to  wit : 

By  hunting; 

By  fowling ; 

By  fishing ; 

By  invention  (finding),  that  is,  by  discovering  pi'ecious  stones  on  the 
sea-shore,  or  things  abandoned,  or  a  treasure ; 

By  captures  from  the  enemy. 

Art.  3378. — Wild  beasts,  birds  and  all  the  animals  which  are  bred 
in  the  sea,  the  air,  or  upon  the  earth,  do,  as  soon  as  they  are  taken, 
become  instantly  by  natural  law,  the  property  of  the  captor  ;  for  it  is 
agreeable  to  natural  reason  that  those  things,  which  have  no  owner, 
shall  become  the  property  of  the  first  occupant. 

And  it  is  not  material  Avhether  they  are  taken  by  a  man  upon  his 
own  ground  or  upon  the  ground  of  another.  But  the  proprietor  of  a 
tract  of  land  may  forbid  any  person  from  entering  it  for  the  purpose  of 
hunting  thereon. 

11  L.  400. 

Wild  beasts  are  those  which  enjoy  their  natural  liberty  and  go 
wherever  they  please. 

Art.  3379. — Wild  beasts  and  fowls,  when  taken,  are  esteemed  to 
be  the  property  of  the  captor  as  long  as  they  continue  in  his  possession, 
but  when  they  have  once  escaped  and  recovered  their  natural  liberty, 
the  right  of  the  captor  ceases,  and  they  become  the  property  of  the  first 
who  seizes  them ;  and  they  are  understood  to  have  recovered  their  natu- 
ral liberty,  if  they  have  run  or  flown  out  of  sight,  and  even  if  they  are 
not  out  of  sight,  when  it  happens  that  they  cannot,  without  difiiculty,  be 
pursued  and  retaken. 

Art.  3380. — Peacocks  and  pigeons  are  considered  as  wild  beasts, 
though  after  every  flight  it  is  their  custom  to  return ;  and  with  regard 


441  OF  TRESCRIPTION.  441 

to  these  animals  which  go  and  return  customarily,  the  rule  to  be  observ- 
ed is,  that  they  are  understood  to  be  yours  as  long  as  they  appear  to 
retain  tlie  habit  of  returning ;  but  if  this  habit  ceases,  they  cease  to  be 
yours,  and  will  again  become  the  property  of  those  who  take  them. 
And  these  animals  are  considered  to  have  lost  the  habit  of  returning, 
when  they  have  ceased  to  return  for  a  certain  time. 

Art.  3381. — It  is  not  lawful  to  kill  peacocks  and  pigeons  belong- 
ing to  another,  when  they  shall  be  feeding  in  the  fields,  unless  they 
should  commit  depredations ;  it  sliall  likewise  be  unlawful  to  set  traps 
for  the  purpose  of  catching  them,  under  the  penalty  of  damages,  which 
shall  be  recoverable  by  the  owner. 

Art.  3382. — Chickens,  turkeys,  geese,  ducks  and  other  domestic 
animals,  shall  not  be  considered  as  wild  beasts,  though  there  are  species 
of  these  animals  which  exist  in  a  state  of  natural  liberty. 

Therefore,  if  the  geese  or  fowls  of  a  person  should  take  flight,  they 
are  nevertheless  reckoned  to  belong  to  him,  in  whatever  place  they  are 
found,  although  he  shall  have  lost  sight  of  them,  and  whoever  detains 
such  animals  with  an  intention  to  make  them  his,  is  understood  to  com- 
mit a  theft. 

Art.  3383. — Those  who  discover  or  who  may  find  precious  stones, 
pearls  and  other  things  of  that  kind  on  the  seashore  or  other  places 
where  it  is  lawful  to  search  for  and  take  them,  become  masters  of 
them. 

Art.  3384. — He  who  finds  a  thing  which  is  abandoned,  that  is, 
which  its  owner  has  left  with  the  intention  not  to  keep  it  any  longer, 
becomes  master  of  it,  in  the  same  manner  as  if  it  had  never  belonged  to 
any  body. 

4  A.  193. 

Art.  3385. — If  he,  who  has  found  a  movable  thing  that  was  lost, 
having  caused  it  to  be  published  in  newspapers,  and  having  done  all 
that  was  possible  to  find  out  the  true  owner,  cannot  learn  who  he  is, 
he  remains  master  of  it  till  he,  who  was  the  proper  owner,  appears 
and  proves  his  right ;  but  if  it  be  not  claimed  within  ten  3'ears,  the 
thing  becomes  his  property,  and  he  may  dispose  of  it  at  his  will. 

If  the  thing  found  be  a  slave,  the  property  is  only  acquired  after 
such  a  lapse  of  time  as  is  necessary  to  acquire,  by  prescription  and  with- 
out title,  property  of  that  description. 

3  A.  3.39. 

Art.  338G. — Although  a  treasure  be  not  of  the  number  of  the  things 
which  are  lost  or  relinquished,  or  which  never  belonged  to  any  bod}^,  yet 
he  who  finds  it  on  his  own  laud  or  on  land  belonging  to  nobody,  acquires 
its  property ;  and  should  treasure  be  found  on  the  land  of  another,  one- 
half  of  it  shall  belong  to  the  finder,  and  the  other  half  to  the  owner  of 
the  soil. 

A  treasure  is  a  thing  hidden  or  buried  in  the  earth,  on  which  no  one 
can  prove  his  property,  and  which  is  discovered  by  chance. 

Art.  3387. — We  must  not  reckon  in  the  number  of  things  relin- 
quished, those  which  one  has  lost,  nor  that  which  is  thrown  into  the  sea, 
in  a  danger  of  shipwreck,  to  save  the  vessel,  nor  those  which  are  lost  in 
a  sliipwreck.  For  altliough  the  owners  of  these  things  lose  the  posses- 
Bion  of  them,  yet  they  retain  the  property  and  the  right  to  recover 


442  OF  PRESCRIPTION'. 

them.  Thus,  those  who  fiud  things  of  this  kind,  cannot  make  them- 
selves masters  of  them,  but  are  obliged  to  restore  them  to  their  lawful 
owners,  in  the  manner  provided  for  by  the  special  laws  made  on  that 
subject. 

4  A.  193. 

Art.  3388. — The  manner  of  acquiring  the  property  of  captures 
made  from  an  enemy  in  time  of  war,  is  regulated  by  the  law  of  nations, 
and  with  respect  to  prizes  made  at  sea,  by  laws  which  are  general 
throuehout  the  Union. 


CHAPTER  II. 

OF    POSSESSION. 

Art.  3389. — Possession  is  the  detention  or  enjoyment  of  a  thing, 
which  we  hold  or  exercise  by  ourselves,  or  by  anothe*  who  keeps  or  ex- 
ercises it  in  our  name. 

Soo  6  L.  57. 

Art.  3390. — There  are  two  species  of  possession,  natural  and  civil. 

19  L.  254 ;  See  19  L.  251 ;  5  R.  314 ;  2  A.  205. 

Art.  3391. — Natural  possession  is  that  by  which  a  man  detains  a 
thing  corporeal,  as  by  occupying  a  house,  cultivating  ground,  or  retain- 
ing a  movable  in  possession. 

19  L.  254;  Sec  3390. 

Art.  3392. — Possession  is  civil,  when  a  person  ceases  to  reside  in 
the  house  or  on  the  land  which  he  occupied,  or  to  detain  the  movable 
which  he  possessed,  but  without  intending  to  abandon  the  possession. 

13  L.  234;  19  L,  254;  See  3390;  See  13  L.  230;  See  2452,  2455,  3405,  3406,  3107;  346S,  3417,  8419. 

Art.  3393. — Natural  possession  is  also  defined  to  be  the  corporeal 
detention  of  a  thing,  which  we  possess  as  belonging  to  us,  without  any 
title  to  that  possession,  or  with  a  title  which  is  void. 

Art.  3394. — Civil  possession,  on  the  contrary,  is  defined  in  this 
sense,  as  being  the  detention  of  a  thing,  by  virtue  of  a  just  title,  and 
under  the  conviction  of  possessing  as  owner. 

13  L.  234. 

Art.  3395. — Possession  applies  properly  only  to  corporeal  things, 
movables  or  immovables. 

The  possession  of  incorporeal  rights,  such  as  servitudes  and  other 
rights'  of  that  nature,  is  only  a  quasi  possession,  and  is  exercised  by  the 
species  of  possession  of  which  these  rights  are  susceptible. 

Art.  3396. — One  may  possess  a  thing,  not  only  by  one's  self,  but 
also  by  other  persons. 

Thus  the  proprietor  of  a  house  or  other  tenement  j^ossesses  by  his 
tenant  or  by  his  farmer ;  the  minor  by  his  tutor  or  curator ;  and  in 
general,  every  proprietor,  by  the  persons  who  hold  the  thing  in  his 
name. 

12  R.  141. 

Art.  3397. — Seeing  the  use  of  the  property  is  to  have  a  thing  in 


443  OF  PKESCRIPTION.  443 

order  to  eujoy  it  and  to  dispose  of  it,  and  that  it  is  only  by  possession 
that  one  can  exercise  this  right,  possession  is  therefore  naturally  linked 
to  the  property. 

Thus  possession  implies  a  right  and  a  fact ;  the  right  to  enjoy  an- 
nexed to  the  right  of  property,  and  the  fact  of  the  real  detention  of  the 
thing,  that  is  in  the  hands  of  the  master  or  of  another  for  hiiu. 

Art.  3398. — Although  the  possession  he  naturally  linked  with  the 
property,  yet  they  may  subsist  separately  from  each  other ;  for  it  may 
happen  that  the  actual  possessor  is  not  the  true  owner. 

12  E.  141. 

Akt.  3399. — To  be  able  to  acquire  possession  of  a  property,  two 
distinct  things  are  requisite  : 

1.  The  intention  of  possessing  as  owner; 

2.  The  corporeal  possession  of  the  thing, 

1  R.  41. 
Art.  3400. — It  is  not  necessary,  however,  that  a  person  wishing  to 
take  possession  of  an  estate,  should  pass  over  every  part  of  it ;  it  is 
sufficient,  if  he  enters  on  and  occupies  a  part  of  the  land,  provided  it 
be  with  the  intention  of  possessing  all  that  is  included  within  the  boun- 
daries. 

1  R.  159. 

Art.  3401. — One  may  acquire  possession  of  a  thing,  not  only  by 
himself,  but  also  through  others  who  receive  it  for  him  and  in  his  name. 
But  in  this  case  it  is  necessary  that  the  person  receiving  the  possession, 
should  have  had  intention  of  receiving  for  the  other. 

12  R.  141. 

Art.  3402. — Children  and  insane  persons,  being  incapable  of  exer- 
cising a  will,  cannot  ac(|uire  by  themselves  the  possession  of  a  thing; 
but  they  may  acquire,  through  the  medium  of  their  tutor  or  curator, 
because  the  will  exercised  by  tutors  and  curators  in  making  the  acqui- 
sition for  such  persons,  supplies  the  defect  of  will  under  which  they 
labor. 

Art.  3403. — For  the  same  reason,  corporations  may  acquire  the 
possession  of  a  thing,  through  the  agency  of  those  who  administer  their 
affairs. 

Art.  3404. — Those  who  possess,  not  for  themselves,  but  in  the  name 
of  another,  as  farmers,  depositaries  and  others  whd  acknowledge  an 
owner,  cannot  acquire  the  legal  possession,  because,  at  the  commencement 
of  their  possession,  they  had  not  the  intention  of  possessing  for  them- 
selves, but  for  anotlicr. 

Art.  3405. — When  a  person  has  once  acquired  possession  of  a 
thing  by  the  corporal  detention  of  it,  the  intention  which  he  has  of 
possessing,  suffices  to  preserve  the  possession  in  him,  although  he  may 
have  ceased  to  have  the  thing  in  actual  custody,  either  himself  or  by 
others. 

13  L.  205 ;  IG  L.  in ;  19  L.  254;  Sec  3392. 

Art.  340G. — This  intention  of  retaining  possession  is  always*  sup- 
posed, where  a  contrary  intention  does  not  appear  decidedly :  so  that 
although  a  person  mny  have  abandoned  the  cultivation  of  his  estate,  ho 
shall  not  tliereforc  be  presumed  to  have  abandoned  the  possession,  but 


444  OF  PRESCRIPTION. 

shall  'je  presumed  on  the  contrary  to  have  the  intention  of  retaining  it 
and  shall  retain  it  in  fact. 

13  L.  235 ;  19  L.  254;  See  3i63. 

Akt.  3407. — To  retain  the  possession  of  a  thing,  when  a  man  once 
has  it,  it  is  not  even  necessary  that  he  should  have  such  positive  inten- 
tion ;  a  negative  intention  suffices,  that  is,  it  suffices  that  the  positive 
intention,  which  he  had  in  acquiring  the  possession,  shall  not  have  been 
revoked  by  a  contrary  intention ;  for,  so  long  as  this  revocation  does 
not  take  place,  the  possessor  is  supposed  always  to  retain  his  first  inten- 
tion, unless  a  third  person  has  usurped  or  taken  from  him  the  posses- 
sion, or  he  has  failed  to  exercise  an  actual  possession  for  ten  years. 

13  L.  235;  19  L.  254. 

Art.  3408. — To  enable  one  person  to  obtain  possession  for  another, 
it  is  necessary  that  he  should  have  such  intention  in  making  the  acqui- 
sition ;  but  in  preserving  the  possession  for  another,  it  is  not  necessary 
that  this  intention  should  continue  to  exist. 

Thus,  if  a  farmer  who  retains  an  estate  in  the  name  of  another, 
should  lose  the  use  of  reason,  although  on  this  account  he  would  be  in- 
capable of  exercising  a  will,  and  consequently  could  not  retain  the  pos- 
session for  and  in  the  name  of  the  person  who  had  leased  it  to  him,  yet 
shall  the  latter  retain  the  possession. 

See  G  E.  1. 

Art.  3409. — Even  if  a  person,  who  commenced  his  possession  of  an 
estate  for  another,  should  entertain  the  intention  of  no  longer  holding 
for  that  other,  but  for  himself,  yet  shall  he  still  be  presumed  to  hold 
possession  for  the  person  for  whom  he  originally  took  it. 

1  E.  41 ;  4  A.  172 ;  See  2  L.  452 ;  6  E.  1. 

Art.  3410. — Possession  of  a  thing  may  be  lost  either  with  or  with- 
out the  consent  of  the  possessor. 

Art.  3411. — Possession  is  lost  with  the  consent  of  the  possessor: 

1 .  When  he  transfers  this  possession  to  another  with  the  intention 
to  divest  himself  of  it ; 

2.  When  he  does  some  act,  which  manifests  his  intention  of  aban- 
doning possession,  as  when  a  man  throws  into  the  street  furniture,  or 
clothes,  of  which  he  no  longer  chooses  to  make  use. 

4  A.   172. 

Art.  3412. — A  possessor  of  .an  estate  loses  the  possession  against 
his  consent : 

1.  When  another  expels  him  from  it,  whether  by  force  in  driving 
him  away,  or  by  usurping  possession  during  his  absence,  and  preventing 
him  from  re-entering ; 

2.  When  the  possessor  of  an  estate  allows  it  to  be  usurped,  and 
held  for  a  year,  without,  during  that  time,  having  done  any  act  of  pos- 
session, or  interfered  with  the  usurper's  possession. 

1  E.  159 ;  See  2  L.  452. 

Art.  3413. — Although  possession  results  frequently  from  a  fact,  and 


445  OF  PRESCRIPTION".  445 

not  from  right,  it  nevertheless  confers  on  the  possessor  certain  rights 
with  regard  to  the  thing  possessed,  some  of  which  are  peculiar  to  the 
possessor  in  good  faith,  and  the  others  arc  common  to  all  possessors. 

Art.  3414. — Tlie  possessor  in  good  faith  is  he  who  has  just  reason 
to  believe  himself  the  master  of  the  thing  which  he  possesses,  although 
he  may  not  be  in  fact,  as  happens  to  him  who  buys  a  thing  which  he 
supposes  to  belong  to  the  person  selling  it  to  him,  but  which  in  fact  be 
longs  to  another. 

6R.  192;  See  3452. 

Art.  3415. — The  possessor  in  bad  faith  is  he  who  possesses  as  mas- 
ter, but  who  assumes  this  quality,  when  he  well  knows  that  he  has  no 
title  to  the  thing,  or  that  his  title  is  vicious  and  defective. 

5R.  192;  12E.  25G;  6  A.  85T. 

Art.  3416. — The  rights,  which  are  peculiar  to  the  possessor  in  good 
faith,  are : 

1.  The  right,  which  such  a  possessor  has  to  gather  for  his  benefit  the 
fruits  of  the  thing,  until  it  is  claimed  by  the  owner,  without  being' 
bound  to  account  for  them,  except  from  the  time  of  the  claim  for  resti- 
tution. 

See  1  L.  137. 

2.  The  right  which  such  a  possessor  has,  in  case  of  eviction  from 
the  thing  reclaimed,  to  retain  it  until  he  is  reimbursed  the  expenses  he 
may  have  incurred  on  it. 

10  K.  178  ;  8  N.  S.  608  ;  12  R.  256. 

Art.  3417. — Rights,  which  are  common  to  all  possessors  in  good  or 
bad  faith,  arc  : 

1.  That  they  are  considered  provisionally,  as  owners  of  the  thing 
which  they  possess,  so  long  as  it  is  not  reclaimed  by  the  true  owner,  or 
person  entitled  to  reclaim  it,  and  even  after  such  reclamation,  until  the 
right  of  the  person  making  it  is  established ; 

6  L.  88. 

2.  That  every  person  who  has  possessed  an  estate  for  a  year,  or  en- 
joys peaceably  and  without  interruption  a  real  right,  and  is  disturbed  in 
it,  has  an  action  against  the  disturber,  either  to  be  maintained  in  his  pos- 
session, or  to  be  restored  to  it,  in  case  of  eviction,  whether  by  force  or 
otherwise ; 

13  L.  236 ;  See  12  R.  253,  371 ;  3  A.  339. 

3.  That  such  a  possessor  may,  by  prescription,  acquire  the  property 
of  the  thing  which  he  thus  possesses,  after  a  certain  time,  which  is 
established  by  law,  according  as  he  has  possessed  in  good  or  bad  faith. 

Art.  3418. — The  action,  Avhich  a  possessor  for  one  year,  has  against 
a  person  disturbing  his  possession,  to  be  maintained  in  it  or  restored  to 
it,  as  is  said  in  the  preceding  article,  shall  be  decided  before  pronoun- 
cing on  the  question  of  property,  and  the  real  owner  shall  not  be 
allowed  to  repel  it  by  endeavoring  to  prove  his  right. 

3  A.  839. 

Art.  3419. — But  this,  which  is  called  the  possessory  action,  must 
be  commenced  by  the  possessor  within  a  year,  reckoning  from  the  time 


446  OF  PRESCRIPTION. 

when  lie  was  disturbed  ;  for  if  lie  leaves  the  person  evicting  him  in  pos 
session  for  one  year,  without  complaint,  he  shall  lose  his  possession, 
whatever  apparent  right  he  may  have  had  to  it,  and  shall  be  driven  to 
his  action  for  the  property. 

13  L.  230;  19  L.  256. 


CHAPTER  III. 

OF    PRESCRIPTION. 

Section  I. —  General  Provisions. 

Art.  3420. — Prescription  is  a  manner  of  acquiring  property,  or 
discharging  debts,  by  the  effect  of  time,  and  under  the  conditions  regu- 
lated by  law. 

Each  of  these  prescriptions  has  its  special  and  particular  definition. 

4  L.  826. 

Art.  3421. — The  prescription,  by  which  property  is  acquired,  is  a 
right  by  which  a  mere  possessor  acquires  the  property  of  a  thing  which 
he  possesses,  by  the  continuance  of  his  possession  during  the  time  fixed 
by  law. 

Art.  3422. — The  prescription  by  which  debts  are  released,  is  a  per- 
emptory and  perpetual  bar  to  every  species  of  action,  real  or  personal, 
when  the  creditor  has  been  silent  for  a  certain  time  without  urging  his 
claim. 

4  L.  327. 

Art.  3423. — One  cannot  renounce  a  prescription  not  yet  acquired, 
but  it  is  lawful  to  renounce  prescription,  when  once  acquired. 

3  L.  199  ;  1  E.  835 ;  Soo  34S6,  351T. 

Art.  3424. — Such  renunciation  of  prescription  is  either  expressed 
or  tacit. 

A  tacit  renunciation  results  from  a  ftict  which  gives  a  presumption 
of  the  relinquishment  of  the  right  acquired  by  prescription. 

7  L.  2C8 ;  See  84S6. 

Ar?.  3425. — To  be  capable  of  renouncing  the  right  of  prescriiition, 
one  must  be  capable  of  alienating  his  property. 

Art.  3426. — Courts  cannot  supply  the  plea  of  prescription. 

3L.  199;  6  A.  121. 

Art.  3427. — Prescription  may  be  pleaded  in  every  stage  of  a  cause, 
even  on  the  appeal,  but  it  ought  to  be  pleaded  expressly  and  specially, 
before  the  final  judgment. 

8  L.  199,  591  ;  12  R.  155 ;  1  A.  246. 

Art.  3428. — But  prescription  cannot  be  pleaded  in  the  supremo 
court,  unless  the  proof  of  it  appear  from  documents  exhibited,  or  testi- 
mony taken  in  the  inferior  court. 

Art.  3429. — Creditors  and  every  other  person  who  may  have  an 
interest  in  the  acquiring  of  an  estate  by  prescription,  have  a  right  to 
plead  it,  even  in  case  the  person  claiming  such  an  estate  should  renounce 
such  right  of  prescription. 

3  L.  201 ;  16  L.  169  ;  1  A.  330  ;  2  A.  546 ;  See  1  R.  556 ;  12  K.  243. 


447  OF  PRESCRIPTION".  447 

Art.  3430. — The  time  required  for  prescription  is  reckoned  by  days 
and  not  by  hours ;  it  is  only  acquired  after  the  last  day  allowed  by  law 
has  elapsed. 

3  A.  52T. 

Art.  3431. — In  those  prescriptions  which  are  acquired  by  months, 
the  months  are  reckoned  in  the  order  in  which  they  occur  in  the  calen- 
dar, from  the  day  when  the  possession  commenced,  whatever  may  be 
the   uiunbcr   of  days  which  each  month  may  contain. 

Art.  3432. — In  such  prescriptions  as  are  acquired  in  one  or  more 
years,  the  time  is  reckoned  according  to  the  years  of  the  calendar,  which 
have  elapsed  during  the  time  of  possession  required  by  law. 

Art.  3433. — There  are  no  other  prescriptions  than  those  establish- 
ed by  this  code. 

Art.  3434. — The  rules  above  laid  down  are  common  to  those  by 
which  property  is  acquired,  and  those  by  which  debts  are  released. 

12  L.  534. 


Section  II. — Of  the  Frescriptioii  by  tohich  Property  is,  Acqxdred. 

Art.  3435. — The  time  necessary  to  prescribe  for  property,  is  dif- 
ferent, whether  the  property  be  immovable,  slaves  or  movables. 

Art.  3436. — The  property  of  immovables  and  slaves  is  acquired  by 
a  longer  or  shorter  time,  according  as  the  possessor  has  been  in  good  or 
bad  faith,  as  laid  down  in  the  following  paragraph. 

Art.  3437. — Immovables  are  prescribed  for  by  ten  years,  between 
persons  present,  and  twenty  j-ears  between  absentees,  when  the  possessor 
has  been  in  good  faith,  and  held  by  a  just  title  during  that  time. 

Stat.  Wth  March.,  1848,  p.  GO. — That  the  laws  of  prescription  now 
existing,  wlicreby  absentees  and  non-residents  of  the  State  are  entitled 
to  longer  periods  than  persons  present  or  residents  in  the  State,  before 
prescription  can  be  acquired  against  them  be,  and  the  same  are  here- 
by abolished  ;  and  hereafter,  absentees  and  non-residents  of  the  State  are 
to  stand  on  the  same  footing,  in  relation  to  the  laws  of  prescription,  as 
persons  present  or  residents  of  the  State;  provided  that  this  act  shall 
not  apply  to  any  prescription  of  one  year  or  less. 

11  K.  529;  See  3435. 

Art.  3438. — The  same  species  of  property  is  prescribed  for  by 
thirty  years  without  any  title  on  the  part  of  the  possessor,  or  whether 
he  be  in  good  faith  or  not. 

11  Pv.  529. 

Art.  3439. — The  property  of  slaves  is  prescribed  for  by  half  the 
time  requisite  for  the  prescription  of  immovables. 

1  Pv.  41  ;  11  R.  529. 

Art.  3440. — The  property  of  movables  is  prescribed  for  after  the 
lapse  of  three  j-ears. 

Art.  3441. — The  rules  concerning  each  of  these  species  of  prescrip- 
tion form  the  subject  of  the  three  following  paragraphs. 


448  OF  PRESCRIPTION. 

§  1.   Of  the  Trescrlpt'ion  of  Ten  and  Twenty  Years. 

Art.  3442. — He  who  acquires  an  immovable  in  good  faith  and  by  a 
just  title,  prescribes  for  it  in  ten  years,  if  the  real  owner  reside  in  the 
State,  and  after  twenty  years  if  the  owner  resides  out  of  the  State. 

12  R.  552 ;  3  A.  834 ;  See  84.3T. 

Art.  3443. — If  the  ti*ue  proprietor  has  resided  at  times  in  the  State, 
and  at  other  times  out  of  it,  to  render  the  prescription  complete  two 
years  absence  must  be  computed  as  one  year  of  actual  residence,  and 
thus  added  to  the  time  of  residence  already  elapsed. 

Art.  3444. — The  property  of  slaves  is  acquired  in  five  5'ears,  be- 
tween parties  residing  in  the  State,  and  ten  years  when  any  of  them  re- 
side out  of  the  State,  where  the  possessor  has  a  title  and  holds  in  good 
faith. 

4  L.  215  ;  16  L.  175 ;  19  L.  3G2 ;  11  E.  529;  3  A.  334. 

Art.  3445. — To  acquire  the  property  of  immovables  and  slaves  by 
the  species  of  prescription  which  forms  the  subject  of  the  present  para- 
graph, four  conditions  must  concur  : 

1 .  Good  faith  on  the  part  of  the  possessor ; 

2.  A  title  which  shall  bo  legal,  and  sufficient  to  transfer  the  pro- 
perty; 

3.  Possession  during  the  time  required  by  law,  which  possession 
must  be  accompanied  by  the  incidents  hereafter  required ; 

4.  And  finally  an  object,  which  maybe  acquired  by  prescription. 

3M.458;  7M.  406;  10  M.  430;  3  N.  S.  458;  4  N.  S.  213;  7  M.S.  518;  8  N.  S.  279;  5L.  240;  15  L. 
106,  5G6,  580  ;  S  R.  220 ;  4  R.  201 ;  11  E.  529 ;  3  A.  S. 

Art.  3446. — The  good  faith,  spoken  of  in  the  preceding  article,  is 
defined  in  the  chapter  which  treats  of  possession. 

1  A.  440. 

Art.  3447. — Grood  faith  is  always  pr'esumed  in  matters  of  prescrip- 
tion ;  and  he  who  alleges  bad  faith  in  the  possessor  must  prove  it. 

Art.  3448. — It  is  sufficient  if  the  possession  has  commenced  in  good 
faith  ;  and  if  the  possession  should  afterwards  be  held  in  bad  faith,  that 
shall  not  prevent  the  prescription. 

3  A.  8 ;  See  3445. 

Art.  3449. — To  be  able  to  acquire  by  the  species  of  prescription 
mentioned  in  this  paragraph,  a  legal  and  transferable  title  of  ownership 
is  necessary  in  the  possessor  :  this  is  what  is  called  in  law  a  just  title. 

4L.112;  15L.  56G;  Seo  8445. 

Art.  3450. — By  the  term  just  titlc^  in  cases  of  prescription,  we  do 
not  understand  that  which  the  possessor  may  have  derived  from  the  real 
owner,  for  then  no  prescription  would  be  necessary,  but  a  title  which 
the  possessor  may  have  received  from  any  person  whom  he  honestly  be 
lieved  to  be  the  real  owner,  provided  the  title  were  such  as  to  transfer 
the  property. 

15  L.  506,  5S0;  11  R.  529;  3  A.  8;  See  4  L.  112. 

Art.  3451. — And  in  this  case  by  the  phrase  transfer  the  property^ 
we  understand  not  such  a  title,  as  shall  have  really  transferred  the  pro- 
perty, but  a  title  which  by  its  nature,  would  have  been  sufficient  to 
transfer  the  property,  provided  it  had  been  derived  from  the  real  owner, 
such  as  a  sale,  exchange,  legacy,  or  donation. 


449  OF  PRESORIPTTOIf  44(3 

Thus  prescription  could  not  be  acquired  under  a  title  resulting  from 
a  lease  or  loan,  because  these  contracts  do  not  transfer  the  property. 

15  L.  566,  5S0;  11  R.  529 ;  12  K.  553,  59S. 

Art.  3452. — It  is  necesStiry  besides  ; 

1.  That  tlio  title  be  valid  in  point  of  form;  for  if  the  possession 
commenced  by  a  contract  void  in  that  respect,  it  cannot  serve  as  a  foun- 
dation for  prescription ; 

0  K.  190;  11  E.  5G;  See  3414,  3415. 

2.  That  the  title  be  certain ;  thus,  every  possessor,  who  cannot  fix 
exactly  tlie  commencement  of  his  possession,  cannot  prescribe  ; 

3.  That  the  title  be  proved,  for  as  it  is  created  by  deed,  it  is  not 
presumed,  and  every  man  who  founds  Ins  title  on  an  act,  must  produce  it, 
or  prove  the  contents  if  it  be  lost. 

Akt.  3453. — To  enable  one  to  plc.id  the  prescription  treated  of  in 
this  paragraph,  it  is  necessary  that  tho  possession  be  distinguished  by 
the  following  incidents : 

1.  That  the  possessor  shall  have  held  the  thing  in  fact  and  in  right, 
as  owner ;  when,  however,  it  is  only  necessary  to  complete  a  possession 
already  begun,  the  civil  possession  .-jhall  suffice,  provided  it  has  been 
preceded  by  the  corporeal  possession  ; 

2.  That  the  possession  shall  have  been  continuous  and  uninterrupted, 
peaceable,  public,  and  unequivocal ;  a  clandestine  possession  would  give 
no  right  to  prescribe ;  but  he  who  possesses  by  virtue  of  a  title,  cannot 
be  considered  as  a  clandestine  possessor;  for  his  title  leads  to  the  sup- 
position that  the  possession  commenced  in  good  faith,  and  that  is  suffi- 
cient to  enable  him  to  plead  prescription. 

15  L.  55G,  5S0;  10  L.  10  ;  19  L.  251 ;  11  R.  5G;  1  A.  440. 

Art.  3454. — As  to  the  fact  itself  of  possession,  a  person  is  presumed 
to  have  possessed  as  master  and  ^''I'oprictor,  unless  it  appears  that  the 
possession  began  in  the  name  of  and  for  another. 

Art.  3455. — When  a  person's  possession  commenced  for  another,  it 
is  supposed  to  continue  always  under  the  same  title,  unless  there  be 
proof  to  the  contrary. 

Art.  3456. — The  circumstance  of  having  been  in  possession  by  the 
permission  or  through  the  indulgence  of  another  person,  gives  neither 
legal  possession,  nor  the  right  of  prescribing. 

Thus,  those  who  possess  precariously,  that  is,  by  having  prayed  the 
master  to  let  them  have  the  possession,  do  not  deprive  liim  thereof,  but, 
possessing  by  his  consent,  they  possess  for  him. 

Art.  3457. — A  possession  by  violence  not  being  legal,  does  no*^  con- 
fer the  riglit  of  prescribing. 

That  right  only  commences  when  the  violence  has  ceased. 

Art.  3458. — The  actual  possessor,  when  he  proves  that  he  has  for- 
merly been  in  possession,  shall  be  presumed  also  to  have  been  in  posses- 
sion in  the  intermediate  time. 

16  L.  10. 

Art.  3459. — The  possessor  is  allowed  to  make  the  sum  of  possession 
necessary  to  prescribe,  by  adding  to  his  own  possession  that  of  his  au- 
thor, in  whatever  manner  he  may  have  succeeded  him,  whether  by  an 
universal  or  particular,  a  lucrative  or  an  onerous  title. 
29 


450  OF  rRESCRIPTION. 

Art.  3460. — By  the  word  mithor  iu  the  preceding  article,  is  under- 
stood the  person  from  whom  another  derives  his  right,  whether  by  an 
universal  title  as  by  succession,  or  by  particular  title,  as  by  sale,  by  do- 
nation, or  any  other  title,  onerous  or  gratuitous. 

Thus,  in  every  species  of  prescription,'*lhe  possession  of  the  heir 
may  be  joined  to  that  of  the  ancestor,  and  the  possession  of  the  buyer 
to  that  of  the  seller. 

Art.  3461. — But,  to  enjoy  this  advantage,  the  different  possessions 
must  have  succeeded  each  other  without  interval  or  interruption. 

Art.  3462. — We  do  not  consider  as' an  interval  between  two  pos- 
sessions, that  which  takes  place  between  the  decease  of  the  testator  and 
the  acceptance  of  the  succession  by  the  heir ;  the  possession  of  the  de- 
ceased being  considered  in  law  as  continued  in  the  person  of  his  heir. 

Art.  3463. — The  last  condition  required  for  prescription  is  that  the 
thing,  which  is  the  object  of  it,  be  susceptible  of  alienation,  and  of 
which  the  alienation  is  not  prohibited  by  law. 

Art.  3464. — When  a  person  has  a  title  and  possession  conform- 
ably to  it,  he  is  presumed  to  possess  according  to  the  title  and  to  the 
full  extent  of  its  limits. 


§  2. —  Of  tlie  Prescription  of  Thirty   Years. 

Art.  3465. — The  property  of  immovables  is  prescribed  for  by  thirty 
years,  and  that  of  slaves  by  fifteen  years,  without  any  need  of  title  or 
possession  in  good  faith. 

12  M.  635 ;  15  L.  560,  5S0 ;  1  E.  369  ;  11  E.  529. 

Art.  3466. — This  prescription  runs  both  against  residents  of  the 
State  and  absentees.  But  the  possession,  on  which  it  is  founded,  ought 
to  have  the  other  qualities,  which  are  necessary  to  the  prescription  of 
ten  and  twenty  years,  that  is  to  say,  it  must  be  continuous  and  uninter- 
rupted during  all  that  time  ;  it  must  be  public  and  unequivocal,  and 
under  the  title  of  owner. 

1  E.  869 ;  11  E.  529. 

Art.  3467. — The  possession  necessary  for  this  species  of  prescrip- 
tion, v^hen  it  has  commenced  by  the  corporal  possession  of  the  thing, 
may,  if  it  has  not  been  interrupted,  be  preserved  by  external  and  public 
signs,  announcing  the  possessor's  intention  to  preserve  the  possession 
of  the  thing,  as  the  keeping  up  of  roads  and  levees,  the  payment  of 
taxes  and  other  similar  acts. 

Art.  3468. — A  man  may  even  retain  the  civil  possession  of  an 
estate,  sufficient  to  prescribe,  so  long  as  there  remain  on  it  any  vestiges 
of  works  erected  by  him,  as  for  example,  the  ruins  of  a  house. 

See  13  L.  230,  236. 

Art.  3469. — How  favorable  soever  prescription  may  be,  it  shall  be 
restricted  within  just  limits.  Thus,  in  the  prescription  of  thirty  years, 
which  is  acquired  without  title,  it  extends  only  to  that  which  has  been 
actually  possessed  by  the  person  pleading  it. 


451  OF  PRESCRIPTION.  451 

Art,  3470  — Continuous  and  apparent  servitudes  are  acquired  by 
possession  and  the  enjo3'ment  of  the  right  for  thirty  years  uninterrupt- 
edly, even  without  a  title,  or  good  faith. 

Art.  3471. — All  the  rules,  established  in  the  preceding  paragraph 
with  regard  to  the  prescriptions  of  ten  and  twenty  years,  are  applicable 
to  prescriptions  of  thirty  years,  except  in  the  provisions  contained  in 
the  present  paragraph,  which  are  contrary  to,  or  incompatible  with 
them. 

§  3. — Of  Prescription  of  Movables. 

Art.  3472. — If  a  person  has  possessed  in  good  faith  and  by  a  just 
title,  as  proprietor,  a  movable  thing,  during  three  successive  years 
without  interruption,  he  shall  acquire  the  property  of  it  by  prescription, 
unless  the  thing  was  stolen  or  lost. 

4  N.  8.  2S8  ;  11  K.  16;  12  E.  536;  2  A.  976,  997. 

Art.  3473. — If,  however,  the  possessor  of  a  thing  stolen  or  lost 
bought  it  at  public  auction,  or  from  a  person  in  the  habit  of  selling 
such  things,  the  owner  of  the  thing  cannot  obtain  restitution  of  it,  with- 
out returning  to  the  purchaser  the  price  it  cost  him. 

11  R.  16;  2  A.  976;  See  2N.S.  390;  2L,  514;  See  8472. 

Art.  3474. — This  reclamation  on  the  part  of  the  owner,  even  by 
reimbursing  the  price,  is  not  allowed  against  a  person  who  has  purchased 
stray  animals,  which  have  been  sold  in  conformity  with  the  regulations 
of  police,  or  other  movable  objects  lost  or  abandoned,  which  are  sold 
by  authority  of  law,  although  he  has  not  possessed  them  during  the  time 
required  for  the  prescription  of  movables. 

11  R.  16;  See  3472. 

Art.  3475. — When  the  possessor  of  any  movable  whatever  has  pos- 
sessed it  for  ten  years  without  interruption,  while  the  owner  resided  in 
the  State,  or  twenty  years  if  he  resided  out  of  it,  he  shall  acquire  the 
proparty  without  being  obliged  to  produce  a  title,  or  to  prove  that  he 
did  not  act  in  bad  faith. 

IS  L.  5S9 ;  3  A.  839 ;  See  Art  8437,  and  amendment 


§  4. — Of  the  Caiuics  which  prevent  the  Prescription  tending  to  the  Acquisi- 
tion of  Property. 

Art.  3476. — Those  who  possess  for  others,  and  not  in  their  own 
name,  cannot  prescribe,  whatever  may  be  the  time  of  their  possession. 

Thus,  farmers,  tenants,  depositaries,  usufructuaries,  and  all  those 
generally  who  hold  by  a  precarious  tenure,  and  in  the  name  of  the  pro- 
"  itor,  cannot  prescribe  on  the  thing  thus  held. 


prietor,  cannot  prescribe  on  the  thing  th 

1  K.  41. 


Art.  3477. — The  heirs  of  the  persons  holding  under  the  tenures  men- 
tioned in  the  preceding  article,  cannot  prescribe  any  more  than  those 
from  whom  they  hold  such  things. 

Art.  3478. — Notwithstanding  what  is  said  in  the  two  preceding 
articles,  precarious  possessors  and  their  heirs  may  prescribe,  when  tho 
cause  of  their  possession  is  changed  by  the  act  of  a  third  person,  as  if 


452  OF  PRESCRirTIOK 

a  farmer,  for  example,  acqixires  from  another  the  estate  which  he  rented. 
For  if  he  refuse  afterwards  to  pay  the  rent,  if  he  declare  to  the  lessor 
that  he  will  no  longer  hold  the  estate  under  him,  but  that  he  chooses  to 
enjoy  it  as  his  own,  this  will  be  a  change  of  possession  by  an  external 
act,  which  shall  suffice  to  give  a  beginning  to  the  prescription. 

Art.  3479. — Those  to  whom  tenants,  depositaries  and  such  other 
persons  having  only  a  precarious  possession,  liave  conveyed  the  same  by 
a  title  capable  of  transfei'ring  property,  may  prescribe  for  the  same. 

Art.  3480. — One  cannot  prescribe  against  his  own  title,  in  this 
sense,  that  he  cannot  change  by  his  own  act  the  nature  and  the  origin 
of  his  possession. 

Thus,  he  whose  possession  is  founded  on  a  conti-act  of  lease  which 
is  adduced,  is  considered  as  always  possessing  by  the  same  title,  and 
cannot  prescribe  by  any  length  of  time. 

12  E.  210  ;  1  A,  820. 

Art.  3481. — The  rule  contained  in  the  preceding  articles,  is  to  be 
understood  in  this  sense,  that  a  man  cannot  prescribe  against  an  essen- 
tial part  of  the  contract. 

Thus  the  creditor  on  an  annuity  cannot  prescribe  against  the  right 
of  redemption  ;  but  one  may  prescribe  beyond  his  title. 

So  also  a  person,  who  has  a  title  for  one-half  an  estate,  may  pre- 
scribe for  the  other  half;  for  it  may  be  that  a  new  title  has  transferred 
the  property  to  him,  or  that  he  has  acquired  it  without  title  by  thirty 
years  possession. 


§  5. — Of  the  Causes  which  interrupt  Prescription. 

Art.  3482. — There  are  two  modes  of  interrupting  prescription,  that 
is,  by  a  natural  interruption,  or  by  a  legal  interruption. 

See  3  L.  274;  12  L.  530 ;  17  L.  213 ;  6  E.  142. 

Art.  3483. — A  natural  interruption  is  said  to  take  place,  when  the 
possessor  is  deprived  of  the  possession  of  the  thing  during  more  than  a 
year,  either  by  the  ancient  proprietor,  or  even  by  a  third  person. 

Art.  3484. — A  legal  interruption  takes  place,  when  the  possessor 
has  been  cited  to  appear  before  a  court  of  justice,  on  account  either  of 
the  property  or  of  the  possession ;  and  the  prescription  is  interrupted 
by  such  demand,  whether  the  suit  has  been  brought  before  a  court  of 
competent  jurisdiction  or  not. 

8  L.  274  ;  4  L.  417  ;  12  L.  580 ;  17  L.  216, 219  ;  1  E,  893 ;  11  E.  249. 

Art.  3485. — If  the  plaintiiT  in  this  case,  after  having  made  his  de- 
mand, abandons  or  discontinues  it,  the  interruption  shall  be  considered 
as  having  never  happened. 

4  L.  418 ;  11  E.  249 ;  See  2  N.  S.  582 ;  3  N.  S.  177 ;  8  L.  30,  202,  274. 

Art.  3486. — 'Prescription  ceases  likewise  to  run,  whenever  the  debt- 
or or  possessor  makes  acknowledgment  of  the  right  of  the  person  whose 
title  they  prescribed, 

3  L.  262 ;  10  L.  563 ;  12  L.  456 ;  1  E.  556 ;  9  E.  26 ;  11  E.  249 ;  1  A.  825,  830 ;  2  A.  314,  642 ;  3  A.  323, 
552  •  See  3  L.  199  ;  8  L.  283 ;  12  L.  455 ;  5  E.  473  •  6  E.  419 ;  8  E.  145 ;  9  E.  18, 113 ;  4  A.  509. 


453  OF  PRESCRIPTION.  453 

§  6. —  Of  the  Causes  ichich  Suspend  the  course  of  Prescription. 

Art.  3487. — Prescription  runs  against  all  persons,  unless  they  are 
included  in  some  exception  established  by  law. 

12  E.  50T ;  3  A.  714. 

Art.  3488. — Minors  and  persons  under  interdiction  cannot  be  pre- 
scribed against,  except  in  the  cases  provided  by  law. 

15  L.  578,  587 ;  1  E.  369  ;  12  E.  25S ;  See  3  A.  714. 

Art.  3489. — Husbands  and  wives  cannot  prescribe  against  each 
other. 

Art.  3490. — Immovables  and  slaves  given  in  dower,  and  not  de- 
clared alienable  by  the  marriage  contract,  arc  imprescriptible  during 
marriage.  They  may  be  prescribed  for,  if  there  be  a  separation  of  pro- 
perty by  the  marriage  contract,  or  if  it  be  pronounced  afterwards. 

2  L.  306. 

Art.  3491. — Prescription  is  equally  suspended  during  niarriaga  : 

1.  When  the  wife  can  only  be  entitled  to  an  action,  after  having 
chosen  between  accepting  or  renouncing  the  community  ; 

2.  When  the  husband,  having  sold  an  hereditax-y  estate  of  his  wife, 
without  her  consent,  is  bound  in  warranty  for  the  validity  of  such  sale; 
and  in  every  case  when  the  action  of  the  wife  may  be  prejudical  to  her 
husband. 

2  A.  40e,  756,  S34. 

Art.  3492. — Prescription  does  not  run  against  a  beneficiary  heir, 
with  respect  to  the  debt  due  him  by  the  estate. 

But  it  runs  against  a  vacant  estate,  though  no  curator  has  been  ap- 
pointed to  such  estate. 

3  L.  199 ;  9  L.  135  ;  12  E.  258,  507;  3  A.  714;  See  8  L.  321 ;  9  L.  142 ;  2  A.  400. 

Art.  3493. — It  runs  likewise  during  the  delay  which  the  law  grants 
for  making  the  inventory  and  for  deliberating. 

Section  III. —  Of  the  Frcscriptio/i  which  operates  a  Release  from  Debt. 

i\.RT.  349  1. — The  prescription,  which  operates  a  release  from  debts, 
discharges  the  debtor,  by  the  mere  silence  of  the  creditor  during  the 
time  fi.\ed  b}^  law,  from  all  actions,  real  or  personal,  which  might  be 
broujrht  as;aiust  him. 

3  A.  177. 

Art.  3495. — This  prescription  has  also  the  effect  of  releasing  the 
owner  of  an  estate  from  every  species  of  real  rights,  to  which  the  prop- 
erty may  have  been  subject,  if  the  person  in  possession  of  the  right  has 
not  exercised  it  during  the  time  required  by  law. 

4  L.  320;  11  L.  250. 

Art.  3496. — To  enable  the  debtor  to  claim  the  benefit  of  this  pre- 
scription, it  is  not  necessary  that  he  should  produce  any  title,  or  hold  in 
good  faith ;  the  neglect  of  the  creditor  operates  the  prescription  in  this 
case. 

8  A.  177. 

Art.  3497. — The  time  necessary  to  acquire  this  prescription,  is  Ion- 


454  OF  PRESCRIPTION. 

ger  or  shorter,  according  to  the  different  species  of  debts  or  of  real 
rights,  of  which  it  produces  the  discharge  or  extinction. 

AuT.  3498. — Besides  the  different  prescriptions  of  actions,  which  are 
mentioned  in  other  parts  of  this  code,  there  exist  others  which  are  the 
subject  of  the  following  paragraphs. 


§  1. — Of  the  Prescription  of  One  Year, 

Art.  3499. — The  action  of  justices  of  the  peace  and  notaries,  and 
persons  performing  their  duties,  as  well  as  constables,  for  the  fees  and 
emoluments  which  are  due  to  them  in  their  official  capacity ; 

That  of  masters  and  instructors  in  the  arts  and  sciences,  for  lessons 
which  they  give  by  the  month ; 

10  L.  204;  2  A.  759;  5  A.  599. 

That  of  innkeepers  and  such  others,  on  account  of  lodging  and  board 
which  they  furnish ; 

12  E.  143;  3A.  141,  453. 

That  of  retailers  of  provisions  and  liquors  ; 

Stat,  bill  MarcJi,  1852,  p.  90,  §  1. — The  accounts  of  retailers  of  provi- 
sions and  liquors,  and  the  accounts  of  all  merchants,  whether  selling  by 
wholesale  or  retail,  within  this  State,  shall  be  prescribed  by  the  lapse  of 
three  years  from  the  time  the  articles  charged  shall  have  been  furnished 
to  the  purchaser ;  Provided,  the  above  shall  not  apply  to  retail  vendors 
of  ardent  spirits  in  less  quantities  than  one  quart. 

4  K.  22. 

That  of  workmen,  laborers  and  servants,  for  the  payment  of  their 
wages ; 

8  N.  8.  492 ;  14  L.  55.3 ;  11  E.  139 ;  See  2  L.  832. 

That  for  the  payment  of  the  freight  of  ships  and  other  vessels,  the 
wages  of  the  officers,  sailors,  and  others  of  the  crew  ; 

10  E.  402  ;  1  A.  404 ;  3  A.  134 ;  See  3505. 

That  for  the  supply  of  wood  and  other  things  necessary  for  the  con- 
struction, equipment  and  provisioning  of  ships  and  other  vessels,  are  pre- 
scribed by  one  year. 

10  E  402 ;  1  L.  26S;  10  L.  229 ;  19  L.  412 ;  1  E.  433,  556 ;  12  E.  148 ;  1  A.  404,  405 ;  See  5  L.  15 
6  L.  594 ;  10  L.  204,  231 ;  1  E.  433 ;  3  E.  335 ;  11  E.  139 ;  5  A.  671 ;  Bee  3437. 

Aet.  3500. — In  the  cases  mentioned  in  the  pi'eceding  article,  the 
prescription  takes  place,  although  there  may  have  been  a  regular  contin- 
uance of  supplies,  or  of  labor  or  other  service. 

It  only  ceases,  from  the  time  when  there  has  been  an  account  ac- 
knowledged, a  note  or  bond,  or  a  suit  instituted. 

However,  with  respect  to  the  wages  of  offices,  sailors  and  others  of 
the  crew  of  a  ship,  this  prescription  runs  only  from  the  day  when  the 
voyage  is  completed. 

6  L.  594;  10  E.  402 ;  3  A.  141,  458. 

Art.  3501. — The  actions  for  injurious  words,  whether  verbal  or  writ- 
ten, and  that  for  damages  caused  by  slaves  or  animals,  or  resulting  from 
offences  or  quasi  offences  ; 

That  which  a  possessor  may  institute,  to  have  himself  maintained  or 
restored  to  his  possession,  when  he  has  been  disturbed  or  evicted ; 


455  OF  PRESCRIPTION".  455 

'That  for  the  delivery  of  merchandise  or  other  effects,  shipped  on 
board  any  kind  of  vessels  ; 

That  for  damage  sustained  by  merchandise  on  board  ships,  or  which 
may  have  happened  by  ships  running  foul  of  each  other,  are  prescribed 
by  one  year. 

2  N.  S.  24 ;  3  N.  3.  585 ;  3  L.  274,  340 ;  10  R.  119 ;  6  R.  382 ;'  2  A.  400. 

Art.  3502. — The  prescription,  mentioned  in  the  preceding  article, 
runs  : 

AVith  respect  to  the  merchandise  injured  or  not  delivered,  from  the 
day  of  the  arrival  of  the  vessel,  or  that  on  which  she  ought  to  have  ar- 
rived ; 

And  in  the  other  cases,  from  that  on  which  the  injurious  words,  dis 
turbance  or  damage  were  sustained. 


§  2. — Of  the  Prescription  of  Three  Years. 

Art.  3503. — The  action  for  arrearages  of  rent  charge,  annuities  and 
alimony,  or  of  the  hire  of  movables  or  immovables  ; 

11  R.  139  ;  1  A.  209;  2  A.  ST6 ;  See  6  L.  859. 

That  for  the  payment  of  money  lent; 

For  the  salaries  of  overseers,  clerks,  secretaries,  and  of  teachers  of 
the  sciences,  for  lessons  by  the  year  or  quarter ; 

8  N.  S.  492 ;  4  L.  14;  14  L.  553 ;  11  R.  139 ;  6  A.  759  ;  See  2  L.  882. 

That  of  physicians,  surgeons  and  apothecaries,  for  visits,  operations 
and  medicines ; 

C  R.  456 ;  3  A.  45S. 

That  of  parish  judges,  sheriffs,  clerks  and  attorneys,  for  their  fees 
and  emoluments, 

2  N.  S.  515 ;  6  N.  8.  248 ;  3  A.  458  ;  5  A.  603 ;  See  2  A.  8TT. 

Are  prescribed  by  three  years,  unless  there  be  an  account  acknowl- 
edged, a  note  or  bond  given,  or  an  action  commenced  before  that  time. 

Art.  3504. — Tift  action  of  parties  against  their  attorneys  for  the  re- 
turn of  papers  delivered  to  th(fm  for  the  interest  of  their  suits,  is  pre- 
scribed also  by  three  years,  reckoning  from  the  day  when  judgment  was 
rendered  in  the  suit,  or  from  the  revocation  of  the  powers  of  the  attor- 
neys. 

2  A.  876. 


§  3. —  Of  the  Prescription  of  Fite  Years. 

Art.  3505. — Actions  on  bills  of  exchange,  notes  payable  to  order  or 
bearer,  except  bank  notes,  those  on  all  effects  negotiable  or  transferable 
by  indorsement  or  delivery,  are  proscribed  by  five  years,  reckoning  from 
the  day  when  these  engagements  were  payable. 

9L.233;  11  L.  148:  15  L.  145;  16  L.  109.  257;  1  R.1S2;  12R.149;  1  A.  342 ;  2  A.  634, 970 ;  3  A.  220, 
838,464,508,714;  4  A.  126,  171;  5  A.  219,  220,  276.  147;  6  A.  109,  224,  232,  481 ;  See  1  A.  342 ;  2  A- 

634,  016. 

Stat.  5th  March,  1852,  p.  90. — ^  3.   All  promissory  notes,  whether 
the  same  be  negotiable  or  otherwise,  shall  be  prescribed  1  y  five  years. 
Art.  350G. — The  prescription,  mentioned  in  the  preceding  article, 


456  OF  PRESCRIPTIOK 

and  those  prescribed  above  in  the  first  and  second  paragraphs  run  against 
minors  and  interdicted  persons,  reserving,  however,  to  them  their  re- 
course against  their  tutors  or  curators. 

They  run  also  against  persons  residing  out  of  the  State. 

15  L.  146 ;  8  A.  220,  SOS ;  C  A.  232. 

Art.  3507. — The  action  of  nullity  or  rescission  of  contracts,  testa- 
ments or  other  acts ; 

That  for  the  reduction  of  excessive  donations  ; 

That  for  the  rescission  of  partitions  and  guaranty  of  the  portions, 

Are  prescribed  by  five  years,  when  the  person  entitled  to  exercisf 
them  is  in  the  State,  and  ten  years  if  he  be  out  of  it. 

This  prescription  only  commences  against  minors  after  their  majority, 

4  L.  259,  293 ;  3  E.  313  ;  11  li.  3U2 ;  2  A.  443,  667 ;  8  A.  32S ;  G  A.  104 ;  See  2218,  2474 


§  4.  —Of  tlie  Prescription  of  Ten  Years. 

Art.  3508. — In  general,  all  personal  actions,  except  those  above  enu- 
merated, are  prescribed  by  ten  years,  if  the  creditor  be  present,  and  by 
twenty  j'cars,  if  he  be  absent. 

Stat,  oth  Marcli,  1852,  p.  90. — §  2.  The  prescription  of  all  other  open 
accounts,  the  prescription  of  which  is  ten  years  under  existing  laws,  shall 
be  prescribed  by  three  years. 

6  L.  C74 ;  11  L.  14S,  563 ;  7  U.  SS7  ;  12  R.  141, 148,  402 ;  2  A.  634,  779  :  3  A.  46,  177,  220,  323 ;  4  A. 
169, 171 ;  6  A.  481 ;  See  3437  and  ameudment. 

Art.  3509. — The  action  against  an  undertaker  or  architect,  for  de- 
fect of  construction  of  buildings  of  brick  or  stone,  is  prescribed  by  ten 
years. 

Art.  3510. — If  a  master  suiFer  a  slave  to  enjoy  his  liberty  for  ten 
years,  during  his  residence  in  the  State,  or  for  twenty  years  while  out  of 
it,  he  shall  lose  all  right  of  action  to  recover  possession  of  the  slave,  un- 
less the  slave  be  a  runaway  or  fugitive. 

1  A.  195. 

Art.  3511. — The  rights  of  usufruct,  use  and  habitation,  and  servi- 
tudes, are  lost  by  non-use  for  ten  years,  if  the  person,  having  a  right  to 
enjoy  them,  be  in  the  State,  and  by  twenty  years  if  he  be  absent. 

Stat.  30th  Ajn-il,  1853.  No.  274.  An  Act  relative  to  the  Prcscrip- 
tiofi  of  Judgments. — ^  1.  Hereafter  all  judgments  for  money,  whether 
rendered  within  or  without  the  State,  shall  be  prescribed  by  the  lapse 
of  ten  years  from  the  rendition  of  such  judgment;  Provided,  however, 
that  any  party  interested  in  any  judgment  may  have  the  same  revived 
at  any  time  before  it  is  prescribed,  by  having  a  citation  issued  accord- 
ing to  law,  to  the  defendant  or  his  representative,  from  the  court  which 
rendered  the  judgment;  and  if  he  be  absent,  the  court  may  appoint  a 
curator  ad  Jioc  to  represent  him  in  the  proceedings,  upon  whom  the  cita- 
tion shall  be  served,  unless  the  defendant  or  his  representative  shows 
good  cause  Avhy  the  judgment  should  not  be  revived. 

^  2.  Any  judgment  revived  as  provided  in  the  first  section  of  this  act, 
shall  continue  in  full  force  for  ten  years  from  the  date  of  the  order  of  court 
reviving  the  same,  and  that  any  judgment  may  be  revived  as  herein  pro- 
vided for,  as  often  as  the  party  or  parties  interested  may  desire. 


457  OF  PRESCRIPTION.  457 

^  3.  In  case  any  party  or  parties  against  whom  any  judgment  for 
money  has  been  obtained  out  of  the  State  of  Louisiana,  and  such  party 
or  parties  have  resided  in  this  State  for  ten  years  since  the  rendition  of 
said  judgment,  that  such  judgment  shall  be  prescribed,  unless  suit  be 
instituted  on  the  same  within  one  year  from  the  promulgation  of  this 
act ;  and  that  all  laws  or  parts  of  laws  contrary  to  the  provisions  of  this 
act,  be,  and  the  same  are  hereby  repealed. 


§  5. — Of  the  rrcAcription  of  Thirty  Years. 

Art.  3512. — All  actions  for  immovable  property,  or  for  an  entire 
estate,  as  a  succession,  are  prescribed  by  thirty  years,  whether  the  par- 
ties be  present  or  absent  from  the  State. 

S"o  Art.  3437  and  amendment. 

Art.  3513. — Actions  for  the  revendication  of  slaves  are  prescribed 
by  fifteen  years,  in  the  same  manner  as  in  the  preceding  article. 

8  A.  339. 


§  G. — Of  the  Eulcs  relative  to  the  Prcscrij)tion  operating  a  Discliarge  from 

Debts. 

Art.  3514. — In  cases  of  prescription  releasing  debts,  one  may  pre- 
scribe against  a  title  created  by  himself,  that  is,  against  an  obligation 
which  he  lias  contracted. 

Art.  3515. — Good  faith  not  being  required  on  the  part  of  the  person 
pleading  this  prescription,  the  creditor  cannot  compel  him  or  his  heirs 
to  swear  whether  the  debt  has  or  has  not  been  paid,  but  can  only  blame 
himself  for  not  having  taken  his  measures  within  the  time  directed  by 
law ;  and  it  may  be  that  the  debtor  may  not  be  able  to  take  any  positive 
oath  on  the  subject. 

Art.  35  1G. — The  prescription  releasing  debts  is  interrupted  by  ull 
such  causes  as  interrupt  the  prescription,  by  which  property  is  acquired, 
and  which  have  been  explained  in  the  first  section  of  tliis  chapter. 

It  is  also  interrupted  by  the  causes  explained  in  the  following  arti- 
cles. 

»         3  L.  262 ;  10  L.  569 ;  12  n.  243 ;  1  A.  325 ;  See  4  L.  2 1 6  ;  Sec  34S2. 

Art.  3517. — A  citation  served  upon  one  joint  debtor,  or  liis  acknow- 
ledgment of  the  debt,  interrupts  the  prescription  Avith  regard  to  all  the 
others  and  even  their  heirs. 

3  L.  199  :  10  L.  570 ;  12  U.  1S3,  243 ;  3  A.  323 ;  Sec  3505,  8423,  34S6. 

A  citation  served  on  one  of  the  heirs  of  a  joint  debtor,  or  the  ac- 
knowledgment of  such  heir  docs  not  interrupt  the  prescription,  with 
regard  to  the  other  heirs,  even  if  the  debt  was  by  mortgage,  if  the  obli- 
gation be  not  indivisible. 

12  R.  1S3 ;  1  X.  825 ;  2  A.  332 ;  3  A.  202 ;  5  A.  219  ;  Pec  2092,  84S6. 

This  citation  or  acknowledgment  does  not  interrupt  the  prescription, 
with  regard  to  the  other  co-debtors,  except  for  that  portion  for  which 
sunh  heir  is  bound. 

•2  A.  890, 970. 

To  interrupt  this  prescription  for  the  whole,  with  regard  to  the  other 


458  OF  THE  SIGNIFICATION  OF  TERMS. 

CO  debtors,  it  is  necessary,  either  that  the  citations  be  served  on  all,  or 
the  acknowledgment  be  made  by  all  the  heirs. 

Art.  3")  18. — A  citation  served  on  the  principal  debtor,  or  his  ac- 
knowledgment, interrupts  the  prescription  on  the  part  of  the  surety. 

8  L  262 ;  10  L.  570 ;  See  2092,  3017. 

Anx.  3519. — Prescription  does  not  run  against  minors  and  persons 
under  interdiction,  except  in  the  cases  specified  above. 

6  A.  104, 109. 

Art.  3520. — Prescription  runs  against  the  wife,  even  although  she 
be  not  separated  of  property  by  marriage  contract  or  by  authority  of 
law,  for  all  such  credits  as  she  brought  in  marriage  to  her  husband,  or 
for  whatever  has  been  promised  to  her  in  dower ;  but  the  husband  con- 
tinues responsible  to  her. 

GENERAL    DISrOSITION. 

Art.  3521. — From  and  after  the  promulgation  of  this  code,  the 
Spanish,  Roman  and  French  laws,  which  were  in  force  in  this  State, 
when  Louisiana  was  ceded  to  the  United  States,  and  the  acts  of  the 
Legislative  Council,  of  the  legislature  of  the  Territory  of  Orleans,  and 
of  the  Legislature  of  the  State  of  Louisiana,  be  and  are  hereby  repealed 
in  every  case,  for  which  it  has  been  especially  provided  in  this  code, 
and  that  they  shall  not  be  invoked  as  laws,  even  under  the  pretence 
that  their  provisions  are  not  contrary  or  repugnant  to  those  of  this  code. 

N  13  L.  193;  iaL.090. 


TITLE  XXIV. 

OF  THE  SIGNIFICATION  OF  SUNDRY  TERMS  OF  LAW  EMPLOYED 
IN  THIS  CODE. 

Art.  3522. — Whenever  the  terras  of  law,  employed  in  this  code, 
have  not  been  particularly  defined  therein,  they  shall  be  understood  as 
follows  : 

1.  The  masculine  gender  comprehends  the  two  sexes,  wherever  the 
provision  is  not  one,  which  is  evidently  made  for  one  of  them  only ; 

Thus,  the  word  man  or  oncii  includes  women :  the  word  son  or  S07is 
includes  daughters ;  the  words  /if,  A/s,  and  such  like,  are  applicable  to 
both  males  and  females. 

2.  The  singular  is  often  employed  to  designate  several  persons  or 
things :  the  ]ieir,  for  example,  means  the  heirs,  where  there  are  more 
than  one. 

3.  Absentee  is  the  person  who  has  resided  in  the  State,  and  has  de- 
parted without  leaving  any  one  to  represent  him. 

It  means  also  the  person,  who  never  was  domiciliated  in  the  State, 
and  resides  abroad. 


459  OF  THE  SIGNIFICATION  OF  TERMS.  459 

In  matters  of  succession,  the  lieir,  whose  residence  is  not  known,  ia 
deemed  an  absentee. 

15  L.  85 ;  1  A.  204. 

4.  By  AdvcHiscmcnts,  in  cases  where  they  arc  required  by  law  to 
be  given,  it  is  understood  that  the  advertisements  are  not  only  to  be 
posted  up  in  the  usual  places,  but  published  in  the  newspapers,  where 
such  arc  printed. 

5.  Assigns,  means  those  to  whom  rights  have  been  transmitted  by 
particular  title,  such  as  sale,  donation,  legacy,  transfer  or  cession. 

4  A.  202. 

6.  Bill/:,  is  said  of  that  which  is  neither  counted,  weighed,  nor  mea 
sured.  A  sale  by  the  bulk  is  the  sale  of  a  quantity  such  as  i*t  is,  with- 
out measuring,  counting,  or  weighing. 

7.  Fortuitous  cvctit,  is  that  which  liapjiens  by  a  cause  which  we  can 
not  resist. 

8.  Certain,  ujicertai?i.  In  matter  of  obligations,  a  thing  is  certain, 
when  its  essence,  quality,  and  quantity,  are  sufficiently  described,  such 
as  one  hundred  dollars,  such  a  house,  or  such  a  horse. 

It  is  uncertain,  when  the  description  is  not  that  of  an  individual 
object,  but  designates  only  the  kind,  such  as  some  corn,  some  wine,  a 
horse. 

9.  Tiling  adjudged,  is  said  of  that  which  has  been  decided  by  a 
dual  judgment,  from  which  there  can  be  no  appeal,  either  because  the 
appeal  did  not  lie,  or  because  the  time  fixed  by  law  for  appealing  is 
elapsed,  or  because  it  has  been  confirmed  on  the  appeal. 

1  A.92. 

10.  Contribution  is  said  of  the  partition  by  which  the  creditors  of 
an  insolvent  debtor  divide  among  themselves  the  proceeds  of  his  property, 
proportionably  to  the  amount  of  their  respective  credits. 

11.  Obligee  or  creditor,  is  the  person  in  fovor  of  whom  some  obli 
gation  is  contracted,  whether  such  obligation  be  to  pay  a  sum  of  money, 
or  to  do,  or  not  to  do  something. 

12.  Obligor  or  debtor,  is  the  person  who  has  engaged  to  perform 
some  obligation. 

13.  Discretion.  When  it  is  said  that  something  is  left  to  the  dis- 
cretion of  the  judge,  it  signifies  that  he  ought  to  decide  according  to  the 
rules  of  equity  and  tlie  nature  of  circumstances. 

14.  Children.  Under  that  name  are  comprehended,  not  only  the 
children  of  the  first  degree,  but  the  grandchildren,  great  grandchil- 
dren, and  all  other  descendants  in  the  direct  line. 

Natural  children,  even  though  recognized,  make  no  part  of  the  chil- 
dren properly  so  called,  unless  they  have  been  legitimated. 

15.  Failure  signifies  the  situation  of  a  debtor,  who  finds  himself  in 
the  impossibility  of  paying  his  debts. 

IG.  Family,  in  a  limited  sense,  signifies  the  father,  mother,  and 
children.  In  a  more  extensive  sense,  it  comprehends  all  the  individuals 
who  live  under  the  authority  of  another,  and  includes  not  only  the  ser- 
vants, but  also  the  slaves  of  the  father  of  a  family. 

It  is  also  employed  to  signify  all  the  relations  who  descend  from  a 
common  root. 

17.  Fault.  There  are  in  law  three  degrees  of  faults  :  the  gross,  the 
flight,  and  the  very  slight  fault. 


4 GO  OF  THE  SIGNIFICATION  OF  TERMS. 

The  gross  fault  is  that  which  proceeds  from  inexcusable  negligence 
or  ignorance :  it  is  considered  as  nearly  equal  to  fraud. 

The  slight  fault  is  that  want  of  care,  which  a  prudent  man  usually 
takes  of  his  business. 

The  very  slight  fault  is  tliat  which  is  excusable,  and  for  which  no 
responsibility  is  incurred. 

18.  So/is,  daughtcni.  These  words,  though  generally  applicable 
only  to  the  children  of  the  first  degree,  are  sometimes  used  to  signify  all 
the  descendants  in  the  direct  line. 

10.   Force  means  the  effect  of  a  power  which  cannot  be  resisted. 

Siqjcrior  force.  Those  accidents  are  said  to  be  caused  by  superior 
force,  which  human  prudence  can  neither  foresee  nor  prevent. 

20.  Judge.  The  word  judge,  as  employed  in  this  code,  means 
always  the  competent  judge.  It  is  also  used  to  signify  the  court, 
whether  it  be  composed  of  the  judge  alone,  or  of  the  judge  and  jury. 

21.  '  Liofjicious.  Those  dispositions,  which  fathers  and  mothers 
and  other  ascendants  make  of  their  property  to  the  prejudice  of  their 
descendants  beyond  the  proportion  reserved  to  them  by  law,  arc  called 
inofficious. 

11  U.  S02. 

22.  Litigious  rights  are  those  which  cannot  be  exercised  without 
undergoing  a  lawsuit. 

12  L.  124;  2  A.  487. 

23.  Notification,  notice,  is  the  information  given  in  writing  of  some 
act  done,  or  the  interpellation  by  which  some  act  is  required  to  be  done. 

9  K.  207 ;  3  A.  222. 

24.  Onero2is.  The  title  is  said  to  be  onerous,  when  it  is  acquired 
for  a  certain  price,  or  under  certain  charges.  It  is  the  contrary  of  the 
lucrative  title. 

25.  Person  is  applicable  to  men  and  women,  or  either. 

26.  Posterity  coniprchcuds  all  the  descendants  in  the  direct  line. 

27.  Precarious.  That  possession  is  called  precarious,  which  one 
enjoys  by  the  leave  of  another,  and  during  his  pleasure. 

The  title,  which  excludes  the  ownership,  such  as  a  lease,  is  also 
called  inecarious. 

28.  Solvency  is  the  ability  to  pay  one's  debts.  He  who  cannot  pay 
all  that  he  owes,  is  not  solvent. 

29.  Successor  is,  generally  speaking,  tlie  person  who  takes  the  place 
of  another. 

There  are  in  law  two  sorts  of  successors  ;  tlie  successor  by  universal 
title,  such  as  the  heir,  the  universal  legatee  and  tlie  legatee  by  univer- 
sal title  ;  and  the  successor  by  particular  title,  such  as  the  buyer,  donee 
or  legatee  of  particular  things,  the  transferrce. 

The  universal  successor  represents  the  person  of  the  deceased,  and 
jucceeds  to  all  his  rights  and  charges. 


461  OF  THE  SIGNIFICATION  OF  TERMS.  461 

The  particular  successor  succeeds  only  to  the  rights  appertaining  to 
the  thing  which  is  sold,  ceded  or  bequeathed  to  him. 

30.  Tacit  is  said  of  that  which,  although  not  expressed,  is  under- 
stood from  the  nature  of  the  thing,  or  from  the  provision  of  the  law. 

31.  SucJi  as,  are  words  emplo3'ed  to  give  some  example  of  a  rule, 
and  are  never  exclusive  of  other  cases  which  that  rule  is  made  to  embrace. 

32.  Third  2'>crso7is,  with  respect  to  a  contract  or  judgment,  are  all 
who  were  not  parties  to  it.  In  cases  of  failure,  third  persons  arc  par- 
ticularly the  creditors  of  the  debtor,  who  contracted  with  him  without 
knowledge  of  the  rights  which  he  had  transferred  to  another. 

2  L.  122 ;  6  L.  539. 


TJtS     BNO 


PROMULGATION  OF  THE  CIVIL  CODE. 


Extract  from  an  Act  passed  by  the  Sixth  Legislature^  of  the  St  lie  of 

Louisiana,  in  their  Si^concl  Session.,  entitled  '•'•An  Act  to  j^iovide 

for  the  printing  and  the  promxdgation  of  the  Amendments  made 

to  the  Civil  Code  of  the  State  of  Louisiana^     Approved  April 

I2th,  1824. 

Section  I. — Be  it  enacted  hy  the  Senate  and  Ho^ise  of  Rep>resc7ita- 
tives  of  the  State  of  Louisiana,  in  General  Assembly  convened  ;  That 
the  amendments  made  to  the  Civil  Code  of  the  State  shall  be  in  force 
from  the  day  of  their  promulgation,  as  hereinafter  provided. 

Sec.  II. — And  be  it  further  enacted,  That  the  said  Code  as  amended, 
shall  be  printed  in  the  English  and  French  languages,  opposite  to  one 
another,  under  the  title  of  "  Civil  Code  of  the  State  of  Louisiana." 

Sec.  VII. — And  be  it  further  enacted,  That  when  the  said  Civil 
Code  shall  be  printed  and  received,  the  promulgation  of  it  shall  be 
made  by  the  Secretary  of  State,  by  sending  a  copy  thereof  to  each  of 
the  courts  of  and  within  this  State,  of  which  transmission  the  date  shall 
be  recorded  in  the  office  of  the  Secretary  of  State  ;  and  one  month  after 
said  transmission,  the  said  Code  shall  be  deemed  promulgated,  and  shall 
henceforward  be  in  full  force  throughout  the  State. 

A.  B.  ROMAN, 

Speaker  of  the  House  of  Represoitatives. 

H.  S.  THIBODAUX, 

President  of  the  Senate. 

Approved,  April  12,  1824. 

TH.  B.  ROBERTSON, 

Governor  of  the  State  of  Lozcisiana. 


GENERAL  INDEX. 


THE  FIGURES   INDICATE  THE  NUMBERS  OF  THE  ARTICLES. 

A. 

ABANDONMENT. 

Sepo.ration  may  be  claimed  in  case  of  abandonment  of  the  liusband  by  hn 
wife,  or  of  the  wife  by  her  Inisband,  in  what  manner,  from  139  to  143. 

How  a  master  may  discharcje  himself  from  the  responsibility  by  him  incurred 
in  abandoning  his  slave,  181. 

Tlie  abandonment  of  the  land  extinguishes  the  servitudes  charged  on  it,  809. 

Of  the  abandonment  of  property  made  by  a  debtor  to  his  creditors,  v.  cession 
of  property. 
ABSENCE. 

Of  the  effects  of  absence  upon  the  eventual  rights  which  may  belong  to  the 
absentee,  from  77  to  80. 

Of  the  effects  of  absence  respecting  marriage,  81,  v.  absentees. 
ABSENTEES. 

Of  the  meaning  of  the  word  absentee,  3522.     No.  3. 

Of  the  curatorship  of  absentees,  from  50  to  57. 

Of  th«  putting  into  provisional  possession  the  heirs  of  the  absentee,  from 
68  to  76. 

Of  the  case  of  the  minor  children  whose  father  has  disappeared,  from 
82  to  86. 

Curators  who  have  been  appointed  to  absentees,  or  relations  who  have  been 
put  in  possession  of  the  effects  of  such  absentees,  can  sue  or  be  sued  for  a 
partition,  1238. 

Partitions  in  which  absentees  are  concerned,  must  be  made  in  a  judicial 
manner,  1246. 

Absentees  have  a  tacit  or  legal  mortgage  on  the  property  of  their  cura- 
tors, 3282. 

How  proscription  by  which  property  is  acquired,  runs  against  absentees, 
3437,  3442,  3343,  3444, 

How  prescription  which  releases  from  debts,  is  acquired  against  absen- 
tees, 3506. 

ABSENT  HEIRS,  v.  curators,  and  counsel  to  absent  heirs. 

ACCEPTANCE. 

Of  the  community  between  husband  and  wife.  Rules  relative  thereto,  v. 
community. 

Of  donations  inter  vivos  ;  forms  and  effect  of  the  acceptance  of  these  dona- 
tions, from  1527  to  1533.  Such  acceptance  is  not  required  in  donations 
made  by  marriage  contract,  1732. 


464  INDEX. 

ACCEPTANCE— ( Continuea). 

Of  successions;  ia  what  maimer  successions  may  be  accepted  expressly  or 

tacitly,  982. 
At  what  time  succession  may  be  accepted,  from  972  to  981. 
When  the  acceptance  of  a  succession  is  implied  or  not  from  certain  acts,  from 

990  to  997. 
Who  are  the  persons  who  can  or  cannot  accept  a   sueces-^ion,    from   998 

to  1001. 
What  are  the  effects  of  the  acceptation  of  a  succession,  from  1003  to  lOOG. 
ACCESSION. 

(Of  the  right  of)  what  is  so  called,  490. 

Of  the  rig-lit  of  accession  to  what  is  produced  by  the  thing,  from  491  to  495, 

V.  fruits. 
Of  the   right   of    accession   to   what   unites   or   incorporates   itself  to   the 

thing,  496. 
Of  the  right  of  accession  in  relation  to  immovables,    from  497  to  511;    in 
relation  to  movables,  from  512  to  524. 
ACCESSORIES. 

The  obligation  of  delivering  the  thing  sold,  includes  its  accessories  and  depen- 
dencies, 2466. 
ACCESSORY  CONTRACT. 

Its  definition  in  opposition  to  a  principal  contract,  1764. 
ACCIDENTS,  V.  fortuitous  events. 
ACCOUNTS, 

To  be  rendered  by  the  tutor  of  a  minoi',   from  350  to  356,  by  curators  to 
vacant  successions  and  to  absent  heirs,  from  1179  to  1196,  by  the  testamen- 
tary executor,  from  1666  to  1668. 
ACCRETION. . 

(Right  of) ;  in  succession  ah  intestato,  the  portion  of  the  heir  renouncing  goes 
to  his  co-heirs  of  the  same  degree  ;  it  is  what  is  called  tlie  right  of  accretion, 
from  1015  to  1021. 
Tliis  right  does  not  exist  in  matter  of  testamentary  dispositions,  except  in 
some  cases  provided  by  law,  from  1699  to  1702. 
ACCRETIONS, 

Which  are  formed  successively  and  imperceptibly  to  any  soil  situated  on  the 
bank  of  a  river,  to  whom  they  belong,  501,  v.  alluvions. 

acknowledg:\ient. 

Of  natural  children  hy  their  fathers  and  mothers,  in  whose  favor  it  may  be 
made,  its  forms  and  effects,  from  221  to  223,  v.  natural  children. 
ACQUESTS  AND  GAINS,  v.  community. 

ACTIONS. 

An  action  for  the  recovei'y  of  an  immovable  estate  or  an  entire  succession  is 

considered  as  immovable,  403. 
Actions  and  obligations,  the  object  of  which  is  to  recover  money  due  or 

movable  property,  are  considered  as  movables,  466. 
Actions  in  avoidance  of  a  contract,  from  1963  to  1989,  v.  contracts. 
Action  of  nullity  and  rescission  of  agreements  and  sale,  v.  nullity,  rescission,  y. 

hypothecary  and  redhibitory  actions  and  reduction. 

ACTS  under  private  signature. 

What  contracts  may  be  made  imder  private  signature,  2237. 

Of  the  form  necessaiy  for  their  validity,  2238. 

Of  the  credit  to  be  given  to  them,  2239. 

How  the  person,  who  did  subscribe  such  acts,  must  acknowledge  or  deny  his 

signature,  2240. 
Of  the  proof  to  be  made  when  the  signature  is  expressly  denied,  2241. 
In  case  of  sale  or  exchange  of  real  property  or  slaves,  the  acts  under  private 

signature  are  valid  against  bona  fide  purchasers  and  creditors,  only  from  the 

day  on  which  they  are  registered  in  the  office  of  a  notary  public,  2242,  v. 

authentic,  confirmative,  conservatory  and  recognitive  acts. 


INDEX.  465 

ADJUDICATIOK 

How  the  jiroperty  which  minors  hold  in  common  wrth  their  fathers  and 

mothers,  may  be  adjudicated  to  the  latter,  338. 
In  what  manner  adjudication  at  public  sales  ought  to  be  made,  and  of  their 

effect,  from  2585  to  2593,  2601. 

ADMINISTRATION. 

Of  the  tutor,  from  327  to  356,  v.  tutor. 

Of  vacant  successions,  v.  curators  to  vacant  successions. 

ADMINISTRATORS  OF  SUCCESSIONS. 

Of  the  appointment  and  duties  of  the  administrator  of  a  succession,  the  heir 
of  which  takes  time  for  deliberating,  387  from  103-4  to  10-12,  10-16,  1052,  and 
from  1055  to  1063. 

A.DOPTION. 

The  adoption  is  abolished,  232. 

ADULTEROUS  CHILDREN. 
Who  are  called  so,  201. 
Tliey  cannot  be  legitimated  or  acknowledged  by  their  fathers  and  mothers, 

217,  222,  but  they  are  entitled  to  alimony,  262. 
Adulterous  and  incestuous  children  can  in  no  case  inherit  the  estates  of  their 

natural  fathers  and  mothers,  914. 
In  what  manner  fathers  and  mothers  arc  restrained  from  disposing  in  favor 

of  their  adulterous  and  incestuous  children,  1475. 

ADULTERY. 

The  husband  may  claim  a  separation  in  case  of  adultery  on  the  part  of  his 

wife,  136. 
Tlie  wife  may  also  claim  such  separation  in  case  of  adultery  on  the  part  of 
her  husband,   when  he  has  kept  his  concubine  in  their  common  dwell- 
ing, 137. 
ADULTS. 

Males  who  have  attained  fourteen  years  complete,  and  females  the  age  of 
twelve  years  complete,  are  distinguished  by  the  name  of  adults,  40. 
ADVERTISEMENTS. 

What  is  understood  by  public  advertisements,  3522.     No.  4. 
AFFINITY, 

Is  not  an  impediment  to  marriage,  98. 
AFFIXING  OF  SEALS,  v.  seals. 

AGE. 

Age  forms  a  distinction  between  those  who  have  and  those  who  have  not 

sufficient  reason  and  experience  to  be  masters  of  themselves,  34. 
Of  the  presumption  of  survivorship  which  results  from  the  age  of  persons  who 

have  i)erished  in  the  same  event,  from  931  to  933. 

AGREEMENTS,  v.  contracts. 
ALEATORY  CONTRACTS, 
Defined,  2951.  # 

ALEMBICS, 

When  placed  upon  a  tract  of  land  for  its  service  and  improvement,  are  im- 
movable by  destination,  459. 

ALIENATION. 

The  persons  who  have  been  put  into  provisional  possession  of  the  estate  of  the 

absentee,  cannot  alienate  his  immovables  and  slaves,  70. 
When  it  is  necessary  to  sell  any  of  the  slaves  of  the  absentee,  in  what  manner 

such  sale  may  be  made,  65. 
Minor's  property  cannot  be  alienated,  except  when  it  is  for  the  interest  of  tho 

minor  to  do  so,  i-with  what  formalities  such  sale  must  be  made,  338,  339. 
The  immovables  settled  as  a  dowry  cannot  be  alienated  except  in  certain 

casjs,  from  2337  to  2342. 

30 


466  INDEX. 

ALIMONY. 

Children  are  bound  to  maintain  their  father  and  mother  and  other  ascendants 

who  are  in  need,  and  this  obligation  is  reciprocal  on  the  part  of  the  children 

and  other  descendants,  245. 
What  is  understood  by  the  word  alimony,  246. 
In  what  manner  alimony  must  be  granted,  from  247  to  250. 
Fathers  and  mothers  owe  alimony  to  their  natural  children,  aaA  vice  versa  ; 

and  of  the  rules  relative  to  that  obligation,  from  256  to  261. 
Alimony  is  due  to  bastards,  though  they  be  adulterous  and  incestuous,  by  their 

mother  and  her  ascendants,  202. 

ANIMAL. 

Of  the  responsibility  of  the  master  of  an  animal  for  the  damage  he  has  caused, 
2301,  V,  beasts,  cattle  and  ivild  beasts. 

ANNUITIES. 

Perpetual  rents  and  annuities  are  considered  as  movable  things,  466. 

The  annuities  are  civil  fruits  ;  they  are  obtained  day  by  day,  and  they  belong 

to  the  usufructuary,  537,  540. 
Annuities  bear  interest  from  the  day  the  debtor  is  in  default,  1939,  2771. 
The  contract  of  annuity  defined,  2704. 
Annuity  may  be  either  perpetual  or  for  life,  2765. 
Rate  of  interest  on  annuity  for  life,  2766. 
Constitiited  annuity  essentially  redeemable,  2767. 
In  what  cases  the  debtor  may  be  compelled  to  redeem  the  same,  from  2768 

to  2770. 

ANTICHRESIS. 

A  sort  of  pledge,  3101,  defined,  3102. 
Its  form  and  efi'ects,  from  3143  to  3148. 

APOTHECARIES. 

Of  their  privilege  for  medicines  by  them  supplied  to  a  deceased  person  during 

his  last  sickness,  3109. 
Of  the  prescription  of  their  actions  in  payment  of  the  medicines  by  them 

sold,  3503. 

APPARENT  OR  VISIBLE  SERVITUDES. 
What  are  the  servitudes  so  called,  724. 
How  continuous  and  apparent  servitudes  are  acquired  by  prescription,  34*70. 

APPLICATION  AND  CONSTRUCTION  OF  THE  LAWS. 
Rules  relative  thereto,  from  13  to  21. 

APPRAISEMENT,  APPRAISERS,  v.  experts. 

APPRENTICES, 

Are  a  sort  of  free  servants,  157. 

How  apprentices  may  be  engaged,  and  of  the  form  and  effect  of  their  engage- 
ments, from  158  to  163. 

Are  bound  to  fulfil  their  engagements,  and  when  such  engagements  may  be 
dissolved,  from  104  to  166. 

How  the  master  may  correct  his  apprentice,  167. 

V.  Engagejiient  and  master. 

AQUEDUCT. 

(Right  of)  a  sort  of  conventional  servitude,  707,  720. 

ARBITRATION. 

Defined,  3066. 

Form  and  object  of  the  submission  to  arbitration,  3067,  3069,  3070. 

Who  may  or  may  not  make  a  submission,  3068. 

Of  the  penalty  generally  agreed  on  by  the  siibmission,  3073. 

How  the  submission  is  put  an  end  to,  3099. 

V.  Arbitrators,  award. 


INDEX.  467 

ARBITRATORS. 

There  are  two  sorts  of  arbitrators,  SOY 6. 

How  their  powers  are  liniited  with  respect  to  their  extent  or  duration,  3071 

3072,  3089,  3090,  8091. 
Who  may  be  appointed  arbitrators,  or  are  excluded  therefrom,  3074,  3075. 
How  the  arbitrators  and  amicable  compounders  ought  to  determine  the  causes 

submitted  to  them,  3077. 
Of  the  oatli  to  be  taken  by  them,  3078. 

Of  the  proceedings  before  the  arbitrators,  from  3079  to  3082. 
Of  the  umpire  to  be  appointed  in  case  the  arbitrators  cannot  agree,  and  in 

wliat  manner  such  umpire  must  act,  from  3083  to  3086. 
Of  the  duties  imposed  on  arbitrators,  from  3088  to  3095,  3098. 
How  their  powers  expire,  3072,  3090,  3091,  3099. 
In  what  manner  tliey  shall  give  their  award,  from  3092  to  3095. 
Of  the  homologation  of  the  award,  and  of  the  appeal  claimed  therefrom, 

3096,  3097. 

ARCHITECTS,  v.  Undertakers. 

ARREARAGES 

Of  a  rent  charge,  how  prescribed  against,  ^503. 

ASCENDANTS 

Owe  alimony  to  their  descendanta,  and  vice  versa,  245. 

How  ascendants  are  appointed  to  the  tutorship  of  their  descendants,  from  281 

to  2R3. 
Of  successions  falling  to  ascendants,  from  899  to  906. 

ASSIGNS. 

"What  is  the  legal  meaning  of  this  word,  3522.     No.  5. 

ASSIGNMENT  OR  TRANSFER 

Of  debts  and  other  incorporeal  rights,  from  2612  to  2624. 

How  the  delivery  is  operated  between  the  assignor  and  the  assignee,  as  it 
regards  third  persons,  2613. 

Of  the  effects  of  the  want  of  notice  of  such  transfer,  2614. 

The  transfer  of  a  debt  includes  the  privileges  and  mortgages  which  are  at- 
tached to  it,  2615. 

Of  the  nature  and  extent  of  the  warranty  to  which  the  assignor  is  liable,  from 
2616  to  2621. 

How  he  against  whom  a  litigious  right  has  been  tran^erred,  may  be  released 
therefrom,  2622. 

Exception  to  that  rule,  in  what  cases,  2624. 

When  a  right  is  said  to  be  litigious,  2623. 

ATTORNEY  AT  LAW. 

A  counsellor  or  attorney  at  law  is  not  disqualified  from  being  a  witness  in  the 

cause  in  which  he  is  employed,  2261. 
The  actions  of  counsellors  or  attorneys  at  law  for  their  fees  and  emoluments 

are  prescribed  against  by  three  years,  3503. 
The  actions  of  the  parties  against  their  attorneys  for  the  return  of  the  papers 

trusted  to  them,  are  likewise  prescribed  against  by  three  years,  3504. 

ATTORNEY  IN  FACT. 
His  duties,  2971,  2974. 
His  responsibility,  2972,  2975. 

He  is  bound  to  render  an  account  of  his  management  to  his  principal,  2973. 
In  what  case  he  is  answerable  for  the  person  to  whom  he  has  substituted  his 

powers,  2976,  2977. 
The    principal    may  even   in   that  case   act   directly    against    the    substi. 

tute,  2978. 
The  attorney  cannot  go  beyond  the  limits  of  his  procuration,  and  in  what 

cases  he  is  not  considered  to  have  exceeded  his  authority,  2979,  2980. 


468  INDEX. 

ATTORNEY  IN"  FACT— (Co wimwecO. 

The    attorney   is   not   responsible   to   those   with   ■whom  he    contracted   in 

that  capacity,  unless  when  he  has  bound  himself  personally  towards  them, 

2981,  2982. 
When  there  are  several  attorneys  in  fact  empowered  by  the  same  act,  they 

are  not  bound  in  solido,  2983. 
In  what  cases  the  attorney  is  bound  to  pay  interest  to  his  principal,  2984- 

AUCTION  (Sale  at),  v.  Public  sales. 

AUTHENTIC  ACT. 

When  an  act  is  considered  as  being  in  an  authentic  form,  2231. 

In  what  case  an  act  which  is  deficient  as  authentic,  may  avail  as  a  private 

writing,  2233. 
The  authentic  act  is  full  proof  of  the  agreement  between  the  contracting 

parties    and    their   assigns,   unless  it  be  declared  and  proved  a  forgery, 

2233,  2235. 
The  acknowledgment  of  payment  in  an  authentic  act  cannot  be  contested 

xinder  the  pretence  of  the  exception  of  no7i  nimierata  pccunia,  2234. 

AUTHOR. 

What  is  the  meaning  of  this  word,  3460. 

The  possessor  is  allowed  to  make  the  sum  of  possession  necessary  to  prescribe, 
by  adding  to  his  own  possession  that  of  his  author,  3459, 

AUTHORITY  OF  THE  THING  ADJUDGED. 

What  are  the  necessary  requisites  to  give  to  a  judgment  the  authority  of  tho 
thing  adjuged,  22G9. 

AWARD. 

In  what  manner  the  arbitrators  must  give  their  award,  from  3090  to  3095. 

The  award,  in  order  to  be  put  into  execution,  ought  to  be  homologated  or  ap- 
proved by  the  judge,  but  without  any  inquiry  into  its  merits,  except  in 
case  of  appeal,  3096. 

An  award  may  be  appealed  from,  and  how,  3097. 

The  arbitrators  having  once  given  their  award,  cannot  retract  or  change 
any  thing  in  it,  3098. 


B. 

BAD  FAITH. 

The  heir  who  omitted  by  bad  faitli  to  include  in  the  inventory  of  the  succes- 
sion any  effects  belonging  to  it,  is  thereby  deprived  of  the  benefit  of  inven- 
tory, 1054. 

Efifect  of  bad  faith  with  respect  to  the  restitution  of  the  things  unduly  re- 
ceived, 2289,  2290. 

V.  Good  faith,  posseswr. 

BAKERS. 

Tlieir  claims  for  bread  are  privileged,  3158. 

Such  claims  are  prescribed  against  by  the  lapse  of  one  year,  3499,  3500. 
BANKRUPTCY,  v.  failure,  failing  circumstances. 

BANKS  OF  A  NAVIGABLE  RIVER. 

Their  use  is  public,  but  their  property  belongs  to  those  who  possess  the  adja- 
cent lands,  446. 
What  is  understood  by  the  banks  of  a  river  or  stream,  448. 

BASTARDS. 

Children  are  legitimate  cr  bastards;  what  is  understood  by  bastards,  21. 
Bastards  belong  to   no   family,  and  are  not  submitted  to  paternal  autho- 
rity, 254. 
V.  Adulterous,  incestuous,  and  illegitimate  children, 

BED  OF  A  RIVER,  v.  river. 


INDEX.  469 

BENEFICIARY  HEIR. 

Duties  of  the   heir  who  wishes  to  enjoy   the   benefit  of  inventory,    1027, 

1028,  1031. 
During  the  term  for  deliberating,  no  judgment  can  be  rendered  against  the 

beueficiaiy  heir,  1045. 
At  the  expiration  of  the  terra  for  deliberating,  the  beneficiary  heir  may  be 

compelled  to  decide  whether  he  accept  or  reject  the  succession,  from  1048 

to  1050. 
Effect  of  the  declaration  of  the  heir  that  he  is  willing  to  accept  the  succession 

only  under  the  benefit  of  inventory,  1051. 

V.  Benefit  of  inventory. 

BENEFIT  OF  DISCUSSION. 

The  surety  cannot  be  compelled  to  pay  the  debt,  until  after  the  property  of 
the  debtor  has  been  pieviously  discussed  or  seized,  unless  the  security 
should  have  renounced  the  plea  of  discussion ;  rules  relative  to  that  discus- 
sion, from  3014  to  3017,  3020. 
How  that  discussion  may  be  required  by  the  third  possessor  of  the  immov- 
able property  or  slaves  subject  to  a  mortgage,  3366,  3367. 

BENEFIT  OF  DIVISION. 

A  debtor  in  solido  may  be  sued  separately  without  having  a  right  to  plead 
the  benefit  of  division,  2089. 
I      "When  several  persons  are  securities  for  the  same  debt,  any  one  of  them  may 
demand  that  the  creditor  should  divide  his  action,  imlessthe  securities  have 
renounced  the  benefit  of  division,  3018,  3019. 

BENEFIT  OF  INVENTORY, 
Defined,  1025. 
What   is   to   be   done    by    the    heir    who    wishes    to    enjoy   that    benefit, 

1027,  1028. 
Of  the  inventor}'  to  be  taken  in  case  the  heir  takes  such  benefit,  from  1028 

to  1033. 
After  the  inventory,  an  administrator  must  be  appointed;  and  the  preference 

is  to  be  given  to  tlie  beneficiary  heir,  from  1034  to  1040. 
Such  administrators  are  bound  to  give  security,  and  what  are  their  other 

duties,  1034,  1041,  1042,  1044,  from  1055  to  1063. 
What  are  the  advantages  Avhich  the  heir  derives  from  the  benefit  of  inven- 

torj^  1047. 

BILATERAL  OR  RECIPROCAL  CONTRACT,  defined,  1758. 

BILLS  OF  EXCHANGE. 

Actions  for  the  payment  of  bills  of  exchange  or  negotiable  notes,  are  prescribed 
against  by  five  years,  3505,  3506. 

BONA  FIDE  POSSESSOR,  v.  possessor. 

BOOKS. 

The  books  of  merchants  are  good  evidence  against  them,  and  so  are  private 
books  against  him  who  has  written  them,  2244,  2245. 

BORROWER. 

Of  the  obligations  of  the  borrower  for  use,  from  2869  to  2876. 

How  he  must  keep  and  preserve  the  thing,  2869,  2870. 

Of  his  responsibility  witli  respect  to  the  thing  lent,  from  2870  to  2873. 

The  borrower  is  not  at  liberty  to  keep  the  thing  by  way  of  compensation  or 

set-ofT,  2874. 
He  has  no  right  to  be  reimbursed  of  the  expenses  he  was  compelled  to  make 

in  order  to  use  the  thing,  2875. 
When  several  jx-rsons  have  jointly  borrowed  the  same  object,  they  are  bound 

in  solido  to  the  lender,  2876. 
Engagements  of  the  borrower  for  consumption,  from  2891  to  2893. 
The  borrower  is  obliged  to  restore  the  thing  lent  in  the  same  quantity  and 

condition,  and  at  (he  place  and  time  agreed  on,  2891. 


470  INDEX- 

BORROWER— (Coniinwci).    • 

If  it  be  impossible  for  him  to  do  so,  lie  is  bound  to  pay  the  value  of  the  thing 

lent,  2892. 
If  he  does  not  fulfil  either  of  these  engagements,  he  is  bound  to  pay  in- 
terest, 2893. 

BOUND  SERVANTS,  v.  servants. 

BOUNDS. 

lie  who  removes  or  pulls  up  bounds,  is  liable  to  damages,  851. 

BRANCHES  OF  A  FAMILY. 

If  one  root  has  produced  several  branches,  how  is  the  partition  of  a  succession 
to  be  made,  894. 

BRANCHES  OF  A  TREE. 

Every  proprietor  in  the  cities  may  compel  his  neighbor  to  cut  off  the  branches 
and  roots  of  the  trees  which  extend  on  his  estate,  687. 

BROKERS. 

The  broker  or  intermediary  who  is  employed  to  negotiate  a  matter  between 

two  parties,  is  considered  as  the  mandatary  of  both,  2985. 
Of  the  obligations  and  responsibility  of  such  agents,  from  2986  to  2989. 

BROTHERS  AND  SISTERS. 

The  representation  is  admitted  in  favor  of  the  children  and  descendants  ol 
the  brothers  and  sisters  of  the  deceased  when  they  come  to  the  succession, 
in  concurrence  with  the  uncles  and  aunts,  893. 

How  brothers  or  sisters,  or  their  descendants,  inherit  from  their  brother  or 
sister  deceased,  jointly  with  the  father  and  mother  of  the  deceased,  899, 
900,  907. 

Brothers  and  sisters  inherit  to  the  exclusion  of  other  ascendants  and  col- 
laterals, 908. 

BCriLDINGS. 

Lands    and    buildings   and  other    constructions   are   immovable  by  their 

nature,  455. 
Every  one  is  bound  to  keep  his  buildings  in  good  repair ; 
Rights  of  action  of  the  neighbor,  when  a  building  threatens  ruin,  666,  667. 
The  owner  of  a  building  is  answerable  for  the  damage  caused  by  its  ruin, 
2302,  2303.  f 

BULK. 

What  is  the  legal  meaning  of  that  word,  3522,  No.  6. 

BUYER. 

Of  the  obligations  of  the  buyer,  from  2527  to  2543. 

Obligations  of  the  buyer  with  respect  to  the  payment  of  the  price,  from  2528 

to''2530. 
When  the  buyer  is  bound  to  pay  the  interest  of  the  price,  2531,  2532. 
Obligations  of  the  buyer,  by  which  he  is  bound  to  receive  delivery  of  the 

thing,  and  to  remove  it,  2533,  2534. 
In  what  cases  the  buyer  may  suspend  the  payment  of  the  price,  from  2535 

to  2537. 

BUTCHERS. 

Their  privilege,  3158. 

Their  actions  for  supplies  of  meat  are  prescribed  by  one  year,  3499. 


c. 

CADUCIIX 

Of  a  testament  or  legacy,  from  1690  to  1698. 

The  testamentary  disposition  becomes  without  effect,  if  the  instituted  heir  or 

the  legatee  does  not  survive  tlie  testator,  1081. 
Of  the  elfcct  of  conditions  annexed  to  a  testamentary  disposition,  1691,  1692. 


INDEX.  471 

CADUCITY— ( Continueil). 

The  legacy  falls,  if  the  thing  bequeathed  has  totally  perished,  1693,  1G94. 
Difference  in  ease  of  an  alternative  legacy,  1695. 

The  testamentary  disposition  fails,  when  the  instituted  heir  or  the  legatee  re- 
jects it,  or  is  incapable  of  receiving  it,  169G. 
So,    by   the   birth  of  legitimate   children  of  the   testator,    posterior  to  its 
date,  1698. 

CAPABILITY  OF  CONTRACTING. 

How  insane  persons,  slaves,  married  women  and  minors,  are  incapable  of  con- 
tracting, 1775,  1776. 

Rules  with  respect  to  the  incapacity  of  interdicted  persons,  1777,  1781,  1782. — 
Of  minors,  1778,  from  1784  to  1789. — Of  married  Avomen,   1779,  1780,  and 
from  I78t  to  1789. — Of  slaves,  1783. — Of  the  persons  who  are  deprived  of 
the  enjoyment  of  their  civil  rights,   1790. 
V.  interdicted  persons,  married  women,  minors  and  slaves. 

CAPTATION. 

Proof  is  not  admitted  of  the  testamentary  dispositions  having  been  made 
through  hatred,  anger,  suggestion  or  captation,  1479. 

CAPTURES  FROM  THE  EXEMY, 

Are  one  of  the  five  ways  of  acquiring  property  by  occupancy,  and  are  regu- 
lated by  the  law  of  nations,  3377,  3388. 

CARRIERS  AKD  WATERMEN, 

Are  subject  to  the  same  obligations  which  are  imposed  on  tavern  keepers,  in 

the  title  of  deposit,  2722. 
Rules  respecting  their  responsibility,  2724,  2725. 

CASUAL  CONDITIONS, 

Defined,  2016. 

CATTLE, 

Intended  for  the  cultivation  of  land,  are  immovable  by  destination,  459. 

If  the  usufruct  consists  of  only  one  head  of  cattle  which  dies,  the  usu- 
fructunry  is  not  bound  to  return  another,  or  to  pay  the  value  of  the 
same,  68G. 

What  is  his  obligation  when  a  whole  herd  of  cattle  is  subject  to  the  usu- 
fruct, 587. 

CAUSE. 

Prescription  may  be  pleaded  in  every  stage  of  a  cause,  3427,  v.  prescription, 

CAUSE  OF  CONTRACTS. 

An  obligation  without  a  cause,  or  with  a  false  or  unlawful  cause,  can  have  no 
effect,  1887. 

When  the  cause  of  a  contract  is  considered  as  illicit,  1889. 

What  is  meant  by  the  cause  of  a  contract,  1890. 

An  agreement  is  not  the  less  valid,  though  the  cause  be  not  express- 
ed,  1888. 

When  a  contract  is  considered  as  being  without  cause,  1891. 

Where  the  consideration  or  cause  of  a  contract  exists  at  the  time  of 
making  it,  but  afterwards  fails,  in  what  cases  it  will  not  effect  the  contract, 
1892,  1893. 

If  the  party  can  show  the  existence  of  a  true  consideration,  the  contract  can- 
not be  invalid.'iled,  though  the  cause  expressed  in  the  contract  be  one  that 
did  not  exist,  1894. 

CAUSES  WIIICII  DISPENSE  OR  EXCUSE  FROM  THE  TUTORSHIP,  from 
319  to  321. 

Who  are  the  persons  dispensed  or  excused  by  the  nature  of  their  offices,  from 
312  to  314. 

Persons  who  arc  not  relations  of  the  minor,  or  who  are  related  to  him 
only  beyond  the  fourth  degree,  cannot  be  compelled  to  accept  the  tutor- 
ship, 315. 


472  INDEX. 

CAUSES  WHICH  DISPENSE  OR  EXCUSE  FROM  T»E  TUTORSHIP— (Con- 

tlmted). 

A  person  may  be  excused  from  the  tutorship  by  his  age,  infirmities,  or  the 
number  of  tutorships  to  which  he  has  been  already  appointed,  from  316 
to  318. 

In  what  manner  and  at  what  time  the  tutor  must  propose  his  excuses  against 
his  appointment ;  he  is  bound  to  administer  provisionally  during  the  pen- 
dency of  the  suit  relative  thereto,  319,  320. 

No  excuse  whatever  may  dispense  the  father  from  accepting  the  tutorship  of 
his  children,  321. 

CAUSES, 

For  which  a  ]-)erson  may  be  excluded  or  removed  from  tutorship 
V.  Incapacity,  exclusion,  and  deprivation  of  tutorship. 
celebration' OF  MARRIAGES. 

By  whom  marriages  may  be  celebrated,  101,  102. 

No  marriage  canbe  celebrated  without  the  license  of  the_  parish  judge ;  in 

what  manner  this  license  must  be  granted,  and  how  opposition  may  be  made 

to  the  granting  of  it,  from  103  to  106,  from  108  to  110. 
In  whose  presence  the  marriage  must  be  celebrated;  act  to  be  made  of  such 

celebratiion,  107. 
No  marriage  ciin  be  contracted  by  procuration.  111. 

CERTAIN,  UNCERTAIN. 

What  is  the  legal  meaning  of  these  words,  3522,  No.  8. 

CERTAIN  CONTRACTS. 

Definition  of  contracts  which  are  certain,  1*768. 

CESSION  OF  PROPERTY, 

Defined,  2166. 

Two  kinds  of  cession,  2167,  2168. 

Both  are  subject  to  formalities  prescribed  by  special  laws,  2169. 

What  is  the  benefit  of  the  voluntary  cession  of  property,  and  of  its  effects, 
2170,  2172,  2173. 

The  cession  of  goods  does  not  transfer  the  property  to  the  creditors,  but  only 
gives  them  the  right  of  selling  it,  2171. 

The  creditors  cannot  refuse  the  cession  of  property,  except  in  case  of 
fraud,  2172. 

Of  the  rights  which  the  debtor  preserves  on  the  property  thus  surrendered, 
after  the  cession  has  been  made,  2174,  2175. 

Of  the  rights  which  the  cession  confers  upon  the  creditors,  from  2176  to  2178. 

What  are  the  eff"ects  which  the  debtor  is  not  bound  to  abandon  to  his  credi- 
tors, 2179. 

In  what  manner  the  sale  of  property  surrendered  to  creditors  must  be 
made,  2180. 

CHARGES. 

Of  the  charges  which  the  usufructuary  is  bound  to  support,  572,  573. 

CHILD,  CHILDREN. 

Children  arc  legitimate  or  bastards,  27. 

ChildreTi  born  dead  are  considered  as  if  they  had  never  been  born  or  con- 
ceived, 28. 

Children  in  their  mother's  womb  are  considered  as  if  they  were  already  born, 
and  of  their  rights,  29. 

Children  are  legitimate  or  illegitimate,  197. 

When  the  child  is  or  is  not  deemed  capable  of  living,  205  ;  and  when  his  le- 
gitimacy may  be  disputed,  from  204  to  211. 

How  the  filiation  of  legitimate  children  may  be  proved,  v.  filiation. 

How  children,  born  oiit  of  marriage,  may  be  legitimated,  v.  legitimation. 

Y.  Bastards,  illegitimate,  legitimate,  and  natural  children. 

CHILDREN  OF  COLOR. 

In  what  manner  proof  of  acknowledgment  of  children  of  color  may  be 
made,  221. 


I 


INDEX.  473 

CHILDREN  OF  SLAVES. 

Children  born  of  a  mother  in  slavery  follow  the  condition  of  their  mother, 
and  belong  to  the  master  of  such  mother,  183,  492. 

The  usufructuary  has  only  the  enjoyment  of  their  labor  or  services,  539. 

Children  of  slaves  are  considered  as  natural  fruits,  537. 

The  child  born  of  a  woman,  after  she  has  acquired  the  right  of  being  free 
at  a  future  time,  becomes  free  at  the  period  fi.xed  for  her  enfranchise- 
ment, 196. 

CHIMNEY. 

At  what  distance  and  in  what  manner  a  chimney  must  be  constructed  near  a 
wall,  whether  held  in  common  or  not  with  a  neighbor,  G88,  689. 

CITATION. 

In  what  manner  prescription  is  interru2:)ted  by  a  citation,  0484,  3485, 
3517,  3518. 

CITIES. 

Things  which  are  for  the  common  use  of  a  city,  are  public  things,  445. 
Things   which   belong  in  common  to   the  inhabitants  of  cities,  are  of  two 
kinds,  449. 

CITY  COUNCILS 

Have  the  right  to  m.ake  regulalions  to  determine  the  mode  of  proceeding  to 
pull  down  houses  in  order  to  arrest  the  progress  of  fire,  668. 

CIVIL  FRUITS. 

What  fruits  are  so  called,  537. — They  belong  to  the  usufructuary,  536,  and 
they  are  acquired  day  by  day,  540,  \.  fruits. 

CIVIL  OBLIGATIONS, 

Defined,  1750. 

Their  different  kinds,  1753. 

CIVIL  POSSESSION, 

Defined,  3390,  3392:  in  what  it  diflfers  from  natural  possession,  3394;  how  it 
may  be  retained,  3468,  v.  possession. 

CLAUSES,  V.  penal  clauses. 

CLERKS  AND  SECRETARIES 

Have  a  privilege  for  their  salaries,  3158,  3181 ;  their  actions  for  the  same  are 
prescribed  against  by  three  years,  3503. 

CLERKS  OF  COURTS.  ) 

The  actions  for  their  fees  are  prescribed  against  by  three  years,  3503. 

CLOTHES,  V.  linen  and  clothes. 

CODICIL. 

The  form  of  disj^osing  by  codicil  is  abolished,  1563. 

COH.VBITATION 

Between  husband  and  wife,  is  ever  presumed  in  case  of  a  voluntary  separa- 
tion, 207. 

The  proof  of  cohabitation  with  the  reputed  father,  though  sujiported  by 
oath  of  the  motlier,  is  not  sufficient  to  establish  natural  paternal  de- 
scent, 228. 

COHEIRS,  V.  heirs. 

COLLATERAL  LINE. 

What  is  so  called,  886.  How  the  degrees  are  counted  in  that  line,  888.  In 
whose  favor  the  representation  is  admitted  therein,  893  ;  and  how  brothers 
and  sisters  inherit  in  that  line,  907,  908,  909. 

COLLATERALS. 

How  collaterals  inherit  in  defect  of  brothers  and  sisters,  910. 


474  INDEX. 

COLLATION. 

What  is  meant  by  collation,  from  1306  to  1319. 

How  it  is  due  by  children  and  other  descendants,  from  1306  to  1318. 

How  they  ma}^  be  dispensed  with  the  obligation  of  collating,  from   1309 

to  1312. 
Who  are  the  children  and  descendants  who  are  bound  to  collate,  from  1313 

to  1319. 
To  whom  the  collation  is  due,  and  what  things  are  subject  to  it,  from  1320 

to  1328. 
To  what  succession  it  is  due,  1320. 
What  thinijs  are  and  what  things  are  not  subject  to  be  collated,  1320,  and 

from  1322  to  1325  and  1328. 
How  collations  are  made,  and  in  what  waj-s,  from  1329  to  136Y. 
Of   the  collation   when   made   in   kind,    1320;  and  when  made  by  taking 

less,  1331. 
Of  the  collation  when  the  things  given  were  immovables,  from  1333  to  1360; 

when  they  consisted  in  slaves,  1361,  1362  ;  when  in  movable  effects,  1363  ; 

when  in  S2')eeie,  l.'?6i. 

COMMERCIAL  TARTXERSHIPS, 

Defined,  and  their  kinds,  2796,  2798,  2799. 
Their  particular  rules,  2823. 

COMMISSION. 

Granted  to  tutors  of  minors,  342. 

To  administrators  of  successions,  in  case  the  heir  has  taken  the  benefit  of  in- 

ventorj^  1062. 
To  curators  of  vacant  successions  or  absent  heirs,  1187  to  1190  and  1200. 
To  testaraentar}''  executors,  from  1676  to  1680. 

COMMON  PROPERTY 

Between  husband  and  wiftj,  2314. 

COMMUNITY. 

Of  acquets  and  gains  between  husband  and  wife,  from  2369  to  2393. 

How  marriage  produces  by  itself  that  community,  2369,  2370. 

What  are  the  effects  included  in  that  community,  2371. 

What  debts  are  excluded  therefrom,  2372. 

Of  the  power  of  the  husband  on  the  propert}^  of  the  community,  2373. 

Of  the  partition  of  the  common  effects  at  the  dissolution  of  the  community, 
from  2374  to  2377. 

How   the   wife    and   her   heirs   may  renounce  that  community,   v.    renun- 
ciation. 

How  the  community  may  be  modified  or  limited  by  the  marriage  contract, 
and  how  the  husband  and  wife  may  agree  therein  that  there  shall  be  no 
community  between  them,  from  2394  to  2398. 
V.  Separation. 

COMMUTATIVE  CONTRACTS, 

Defined,  1761 ;  when  presumed  such,  1763. 

COMPARISON  OF   WRITING. 

When  that  kind  of  proof  may  be  resorted  to,  2241. 

COMPENSATION  OR  SET-OFF, 

is  one  of  the  manners  of  extinguishing  a  debt,  2126. 

When  it  may  be  opposed,  from  2204  to  2206 ;  and  when  not,  2207,  2209, 

2210,  2213. 
The  surety  may  oppose  the  compensation  of  what  the  creditor  owes  to  tho 
principal  debtor,  2208. 
COMPROMISE  OR  TRANSACTION,  v.  transaction. 
COMPULSORY  TRANSFER  OF  PROPERTY. 
When  it  may  take  place,  2004,  2605. 

Of  the  compensation  to  be  granted  to  the  owner,  and  in  what  manner  it  ia 
settled,  from  2005  to  2610. 


INDEX.  475 

COMPULSORY  TRANSFER  OF  VROFERTY— {Continued). 

Of  the  recourse  of  the  true  owner  against  the  person  who  has  unduly  received 
sucJi  compensation,  2G11. 

CONCUBINAGE. 

Persons  wlio  live  in  open  concubinage,  are  respectively  incapable  of  making 
to  each  other  any  donations,  except  of  movable  effects  up  to  a  certain 
amount,  1468. 

CONCUBINES. 

Tlie  wife  may  claim  her  separation  for  the  adultery  of  her  husband,  if  he  has 
kept  his  concubine  in  the  common  dwelling,  137. 

CONDITIONS, 

Required  to  contract  marriage,  91,  92. 

Conditions  impossible,  or  contrary  to  the  laws  or  morals,  inserted  in  dona- 
tions, ai'C  deemed  not  written,  1500. 

How  donations  may  be  revoked  on  account  of  the  non-performance  of  the  con- 
ditions annexed  thereto,  1546,  and  from  1552  to  1555. 

CONDITIONS  IN  CONTRACTS. 

Their  several  kinds,  from  2016  to  2021  ;  their  effects,  from  2023  to  2037. 
Of  the  suspensive  condition  and  its  effects,  from  2038  to  2039. 
Of  the  resolutory  condition,  from  2040  to  2042. 

CONDITIONAL  OBLIGATIONS,  v.  oWgations. 

CONFESSION, 

Of  payment,  contained  in  an  authentic  act,  cannot  be  contested  under  the  pre- 
tence of  tlie  exception  oi  non  iiumcrata  pecu?iia,  2234. 
Confession  is  of  two  kinds,  2268. 
Of  extra-judicial  confession,  2269. 
Of  judicial  confession,  2270. 

CONFIR]\IATIVE  ACTS, 

And  their  effects,  from  2252  to  2254. 

CONFUSION. 

Effect  of  confusion  in  matter  of  servitudes,  from  801  to  808;  and  for  the  ex- 
tinguishment of  obligations,  2214,  2215. 

CONJUNCTIVE  OBLIGATIONS. 

Defined,  2058  ;  how  created,  2060. 

CONSANGUINITY. 

The  propinquity  of  consanguinity  is  established  by  the  number  of  genera- 
tions, 885. 

CONSENT  OR  ASSENT 

Necessary  to  give  validity  to  a  contract,  from  1791  to  1813. 

Of  the  nature  of  the  assents,  and  how  it  is  to  be  shown,  from  1791  to  1812. 

What  defects  of  consent  will  invalidate  a  contract,  1813. 

V.  Error,  fraud,  violence,  threats. 

CONSERVATORY  ACTV^. 

Merc  conservatory  acts  do  not  amount  to  an  acceptance  of  a  succession  or  of  a 
community,  991,  2381. 

CONSIGNEE  OR  COMMISSION  AGENT. 

Of  his  privilege  on  the  goods  consigned  to  him,  3214. 

CONSIGNMENT 

In  case  of  a  tender  of  payments,  its  effects,  2163. 

CONSIGNOR. 

Of  his  right  to  claim  his  goods  in  the  possession  of  the  consignee  who  has 
failed,  and  of  his  privilege  on  their  price,  if  still  due,  3216. 
CONSTRUCTION  OF  THE  LAWS. 

(Rules  respecting  the,)  from  13  to  2L 


47G  INDEX. 

CONSTRUCTIONS. 

Wliic-h  the  owner  may  make  on  his  land,  497. 

He  is  presumed  to  have  made  those  which  exist  thereon,  and  at  his  own  ex 

pense,  498. 
Of  the  case  wlien  the  owner  of  the  soil  makes  conkructions  with  materials  be 

longing  to  another,  499. 
When  a  third  person  has  made  constructions  with  his  own  materials  on  the 

land  of  another,  what  is  the  right  of  the  owner,  500. 

CONTINUOUS  OR  NON-INTERRUPTED  SERVITUDES, 
Defined,  723  ;  how  may  be  acquired  by  prescription,  3470. 

CONTRACTS. 

Definition  and  nature  of  a  contract,  1754. 
General  dispositions  relative  to  contracts,  from  1755  to  1771. 
Of  the  several  kinds  of  contracts,   1758,  and  from  1760  to  1769. 
Of  the  requisites  to  the  formation  of  a  valid  contract,  1772. 
Of  the  parties  to  a  contract,  and  of  their  capability,  from  1773  to  1794. 
Of  the /sonsent  necessary  to  give  validity  to  contracts,  from  1791  to  1812. 
"What  defects  of  consent  will  invalidate  a  contract,  1813. 
Of  the  object  and  matter  of  contracts,  from  1877  to  188G. 
Of  the  cause  or  consideration  of  contracts,  from  1887  to  1894. 
V.  Obligations. 

CONTRIBUTION. 

What  is  so  called  with  respect  to  the  payment  of  the  debts  of  a  succes- 
sion, 1869. 

How  the  usufructuary,  under  an  universal  title,  is  bound  to  contribute  to  the 
payment  of  the  debts  of  the  succession  of  the  testator,  580,  581. 

How  legatees  under  an  universal  title  contribute  to  the  same,  1606. 

When  there  are  several  heirs,  each  of  them  contribute  to  the  payment  of  the 
debts,  in  'what  proportion,  1369. 

CONVENTIONAL  MORTGAGES, 

Defined,  3257  ;  rules  relative  thereto,  from  3258  to  3278. 

CONVENTIONAL  OBLIGATIONS,  v.  obligations. 

CONVENTIONAL  SERVITUDES. 
From  705  to  721. 

Of  the  general  division  of  servitudes  into  urban  and  rural,  706, 
Of  the  several  kinds  of  urban  servitudes,  from  707  to  716. 
Of  the  several  kinds  of  rural  servitudes,  from  717  to  722. 
Of  the  division  of  servitudes  into  continuous  and  discontinuous,  apparent  or 
non-apparent,  723,  274. 

COPIES  OF  TITLES. 

Proof  resulting  therefrom,  from  2247  to  2250. 

CORPORATIONS, 
Defined,  418. 

Of  the  nature  of  corporations,  of  their  use  and  kinds,  from  418  to  422. 
Of  their  privileges  and  incapacities,  from  423  to  537. 
Of  the  dissolution  of  corporations,  133. 

CORPOREAL  THINGS, 
Defined,  451. 

CO-TUTOR. 

When  the  mother  retains  the  tutorship  of  her  children  by  a  first  mar 
riage,  her  second  husband  becomes  ipso  facto  the  co-tutor  of  such  chil- 
dren, 273. 

COUNSEL  FOR  THE  ABSENT  HEIRS. 

When  appointed,  and  his  duties,  from  1204  to  1213,  and  1654,  1655. 

COUNSELLOR  AT  LAW,  v.  attorney  at  law. 


INDEX.  477 

COUNTER-LETTERS 

Have  no  effect  against  creditors  or  bona  Jlde  possessors,  2236. 

CREDITORS 

May  intervene  in  the  suits,  the  object  of  which  is  to  deprive  their  debtor  of 
the  unsufruct  granted  to  him,  618. 

They  may  cause  to  be  annulled  any  renunciation  wliich  their  debtor  may  have 
made  of  liis  right  of  usufruct  to  their  prejudice,  619. 

They  arc  authorized  to  accept  a  succession  which  their  debtor  refuses  to 
accc]it,  or  to  which  he  has  renounced,  and  in  what  manner,  1014,  and  from 
10(34  to  1067. 

Of  their  rights,  when  a  presumptive  lieir  of  a  succession  refuses  or  neglects  to 
act  as  such,  1029,  1030. 

What  they  are  authorized  to  do,  when  the  heir  takes  a  term  for  delibera- 
ting, 1045. 

After  what  time  they  may  compel  the  heir  to  decide  whether  he  accepts  or 
not,  1048. 

The  creditors  of  the  wife  may  attack  the  renunciation  to  the  community 
which  she  may  have  made  to  defraud  them,  2390  ;  but  they  cannot,  Avith- 
out  her  consent,  petition  for  a  separation  of  property  between  her  and  her 
husband,  2407. 

The  creditors  of  the  husband  may  object  to  such  separation,  even  when  de- 
creed and  executed,  if  made  to  defraud  them,  2408. 

Of  the  privilege  of  the  creditor  on  the  tiling  given  to  him  on  pledge,  3187. 

The  creditors  may  plead  prescription  for  the  purpose  of  acquiring  property, 
tlwugli  their  debtor  have  renounced  to  such  right,  3429. 

(KEDITORS  IN  SOLIDO. 

Of  the  rules  which  govern  obligations  between  them,  from  2083  to  2085. 

CREW. 

Of  the  privilege  of  the   ofiicers,    sailors,  and  others  of  the  crew  of  a  ves- 


L.  sel,  3204 


Their  claims  for  their  salaries  or  wages  are  prescribed  against  by  one  year, 
3499,  3500. 

CROP. 

Standing  crops  are  considered  as  immovable,  456. 
V.  Fruits. 

CRUEL  TREATMENT. 

The  judge  may  order  the  sale  of  a  slave  against  the  will  of  the  master,  if  such 
master  be  convicted  of  cruel  treatment  towards  him,  192. 

CURATORS,  CURATORSIIIP. 

Of  the  curator  of  the  child  in  his  mother's  womb,  29,  415. 

Curators  to  absentees;  when  they  are  appointed,  and  how,  50,  51,  414. 

Of  their  oath ;  of  the  inventory  to  be  taken  by  them,  and  of  the  security  they 

are  bound  to  give,  52. 
Of  their  powers  and  duties,  53,  54,  56. 
How  their  curatorship  ends,  55. 
Of  the  curator  ad  hoc  to  be  appointed  to  an  absentee  in  the  suits  in  which  he 

is  concerned,  57. 
Curators  of  minors,  257.  * 

There  are  two  kinds  of  these  curators,  358. 

Of  the  curators  ad  bona,  their  powers  and  duties,  from  S51  to  366. 
Of  the  curators  ad  litem,  from  364  to  366. 
Of  the  curator  ad  hoc,  who  is  appointed  in  certain  cases  to  the  emancipated 

minor,  372. 
Tlie  minor  who  is  emancipated  otherwise  than  by  marriage,  cannot  sue  or  be 

sued,  without  being  assisted  by  a  curator  ad  litem,  378. 
Curators  to  insane  persons  and  others,  31. 
At  what  time  curators  arc  appointed  to  insane  persons,  397 


478  INDEX. 

CURATORS,  CURATORSlllP— {Continued). 

Who  may  be  appointed  in  that  capacit}',  and  of  their  power  and  duties  as 
such,  399,  400,  402. 

Of  the  curators  to  be  appointed  to  persons  incapable  of  administering  their 
property  on  account  of  infirmities,  32,  409. 

Of  the  cui'ators  who  are  appointed  to  other  persons,  from  414  to  417. 

Curators  to  vacant  successions  and  absent  heirs. 

Of  the  appointment  of  such  curators,  from  1105  to  1125. 

Of  the  duties  and  powers  of  such  curators,  from  1126  to  1148. 

Of  the  cause  for  which  such  curators  may  be  dismissed  or  superseded,  from 
1149  to  1152. 

How  such  curators  must  proceed  to  the  sale  of  the  effects  and  to  the  liquida- 
tion of  the  successions  by  them  administered,  from  1153  to  1178. 

Of  the  account  to  be  rendered  by  thom,  and  of  the  commission  which  they  are 
entitled  to,  from  1179  to  1196. 

Of  the  duties  of  such  curators,  when  their  administration  is  prolonged  beyond 
the  legal  term,  from  1197  to  1203. 

CUSTOilS, 
Defined,  3. 

D. 

DAMAGE,  V.  loss,  waste. 

DAMAGES. 

Of  the  damages  which  are  due  in  case  of  inexecution  of  obligations  to  do  or 
not  to  do,  from  1920  to  1922. 

Of  the  damages  resulting  from  the  inexecution  of  obligations  in  general,  from 
1924  to  1939. 

The  seller  who  knows  the  vices  of  the  thing  sold  and  omits  to  declare  them, 
is  answerable  in  damages,  2523. 

Of  the  damages  to  which  the  seller  may  be  subject,  when  he  declared 
that  the  thing  sold  possessed  some  quality  which  he  knew  it  did  not 
possess,  2525. 

When  the  buyer  is  bound  in  damages  on  account  of  the  delay  in  the  pay- 
ment of  the  price,  2543. 

DATIVE  TUTORSHIP. 

Rules  relative  thereto,  from  288  to  296. 
V.  Tutorship. 

DATIVE  EXECUTORSHIP. 

In  what  case  the  judge  shall  appoint  a  dative  executor,  and  of  the  duties  of 
such  executor,  1671,  1672. 

DEAF  AND  DUMB 

Are  incapable  of  being  witnesses  to  a  testament,  1584. 

DEATH. 

The  execution  of  a  testament  shall  not  be  ordered  until  the  decease  of  the 
testator  has  been  suflaciently  proved,  1638,  1639. 

DEBTORS  IN  SOLIDO. 

Of  the  rules  which  govern  the  obligations  with  respect  to  debtors  in  solido, 
from  2086  to  2103. 

DEBTS. 

Of  their  payment,  from  1368  to  1416. 

How  the  heirs   and  the  legatees,  tinder   an  universal  title,   are  bound   to 

contribute   to    the   payment  of  the   debts   of  a    succession,    from    1369 

to  1379. 
How  the  usufructuary,  under  an  universal  title,  is  bound  to  contribute  to  the 

same,  550,  581. 
Of  the  manner  in  which  the  debts  of  a  succession  administered  by  curators, 

executors,  and  administrators,  ought  to  be  paid,  from  1051  to  1061 ;  from 

1167  to  1177  and  1663. 


r 


INDEX.  479 

DEDUCTIONS, 

(Of  the)  to  be  made  before  proceeding  to  partitions,  from  1279  to  1284. 
DEFAMATION  (Public)  is  a  cause  of  separation,  139. 
DEFAULT  (To  be  in),  in  liow  many  ways  a  debtor  may  be  put  in  defaultj  for  not 

exe(?uting  his  obligations,  and  effects  of  such  default,  from  1904  to  1908, 

and  1913. 
DEFECTS  OF  A  THING,  v.  vices, 
DEFINITIONS  (general)  of  law,  1,  2. 

DEGREES  OF  RELATIONSHIP. 

In  matter  of  relationship,  each  generation  is  called  a  degree,  885. 
The  series  of  degrees  forms  the  line,  886. 
How  degrees  are  counted  in  the  direct  line,  887. 
How  in  the  collateral  line,  888. 
V.  Zine. 

DELEGATION, 
Defined,  2188. 
Does  not  operate  a  novation  except  in  what  case,  ibid, 

DELIBERATING  (term  for),  v.  term. 

DELIVERY. 

Of  the  obligation  to  deliver  an  object,  and  of  the  effects  of  such  an  obligaticn, 

from  1904  to  1919. 
Tlie  seller  is  bound  to  deliver  the  thing  sold,  2459. 
Tradition  or  delivery  defined,  2452. 
How  the  delivery  of  movable  effects  takes  place,  2t53. 
How  that  of  slaves,  2454. 
How  that  of  immovables,  2455. 
How  tliat  of  incorporeal  rights,  2457. 
Of  the  rules  with  respect  to  the  delivery  or  tradition,  from  2465  to  2475. 

DEPOSIT. 

Defined,  2897. 
Of  its  different  kinds,  2898. 

Of  the  deposit  properly  so  called,  from  2899  to  2934. 
What  may  be  its  object,  2899. 
It  is  essentially  gratuitous,  2900. 
Is  perfected  only  by  real  or  fictitious  delivery,  2901. 
Of  voluntary  deposit;  rules  respecting  it,  from  2903  to  2907. 
The  imperfect  deposit  is  abolished,  2934. 
Of  the  necessary  dejiosit,  from  2935  to  2940. 
V.  Sequestration. 

DEPOSITARY. 

Of  the  obligations  of  the  depositary  in  general,  from  2908  to  2930. 

His  duties,  2908,  2900,  and  from  2911  to  2919,  2930. 

His  rcsponsibilitj^  from  2910  to  291 G. 

To  whom  the  thing  deposited  must  be  restored,  from  2920  to  2923. 

In  what  place  it  must  be  restored,  2924,  2925. 

At  what  time,  2926. 

Tlie  depositary  cannot  retain  the  thing  by  way  of  compensation  or  set-ofl, 

2927. 
"When  several  persons  have  received  the  same  thing  in  deposit,  each  of  them 

is  bound  to  restore  the  whole,  2928. 
The  unfaithful  depositary  is  not  admitted  to  the  benefit  of  cession,  2929. 

DEPOSITOR. 

Of  the  obligations  and  rights  of  the  depositor,  from  2931  to  2933. 

How  the  depositor  lias  a  right  to  reclaim  the  thing  deposited,  when  it  exists 

in  kind  in  the  hands  of  the  depositary  or  assigns,  2932. 
Of  his  privilege  on  the  price  of  that  thing,  if  still  due,  in  case  the  depositary 

has  disposed  of  the  Bame. 


480  INDEX. 

DERELICTIONS. 

Defined,  to  whom  they  belong,  502. 

DESCENDANTS. 

Of  the  duties  of  descendants  toward  their  ascendants  who  are  in  need,  245 
Of  successions  falling  to  descendants,  898. 

DESTRUCTION. 

The  destruction  of  a  building  on  which  an  iisufruct  is  established,  puts  an 

end  to  such  usufruct,  608,  609. 
Servitudes  are    extinguished  by  the   desti'uction-  of  the   estate  which  owes 
the  same,  779. 
'When  the  thing  which  is  the  object  of  the  obligation  is  destroyed,  how  far 
the  obligation  is  extinguished,  2216,  2217. 

DIRECT  LINE. 

What  is  called  so  in  matter  of  relationship,  886. 
How  the  degrees  are  counted  in  the  direct  line,  887. 

DISCUSSION,  V.  tencjit  of  discussion. 

DKCONTINUOUS  OR  INTERRUPTED  SERVITUDES. 
Defined,  723. 
They  cannot  be  acquired  by  prescription,  762. 

DISINHERISON. 

How  forced  heirs  may  be  deprived  of  their  legitime  or  legal  portion,  1609. 

What  are  the  requisites  for  a  valid  disinherison,  from  1510  to  1612  and  1616. 

Of  the  causes  for  which  parents  may  disinherit  their  children,  1613. 

Of  the  causes  for  which  ascendants  may  disinherit  their  descendants,  1614. 

Of  the  causes  for  which  children  may  disinherit  their  parents,  1615. 

Of  the  effect  of  a  valid  disinherison,  1617. 

DISMISSAL,  V.  removal. 

DISPOSABLE  PORTION. 

Of  the  portion  reserved  to  the  children  and  descendants  in  the  succession 

of  their  fathers  and  mothers,  1480. 
Of  the  legal  portion  reserved  to  the  father   and   mother  in   the  succession 
of  their  children  and  descendants,  1481. 
Rules  respecting  the  disposable  portion,  from  1483  to  1488. 

DISPOSITIONS. 

Mortis  causa,  v.  testaments,  testamentary  dispositions. 

DISSOLUTION. 

Of  corporations,  v.  corporations. 

Of  marriage,  v.  marriage. 

Of  partnership,  v.  partnership. 

DISTANCE. 

Of  the  distance  and  of  the  intermediary  works  required  for  certain  build- 
ings, from  688  to  691. 

DISTINCTION, 

Of  persons,  from  24  to  41. 

DISTRIBUTION. 

What  is  understood  by  distribution  among  creditors,  3522,  No.  10. 

DITCHES  IN  COMMON. 

Every  ditch  between  two  estates  is  supposed  to  be  held  in  common,  685. 
A  ditch  held  in  common,  is  to  be  kept  at  the  expense  of  the  two  contiguous 
proprietors,  686. 


I 


INDEX.  48  i 

DIVISIBLE  OBLIGATIONS. 

Their  difference  from  the  indivisible  obligations,  2104. 
Of  the  effects  of  divisible  obligations,  2107,  2108. 

DIVISION,  V.  benefit  of  division.  » 

DOMESTIC  BOOKS  OR  PAPERS. 

Wiiat  proof  may  be  derived  from  them,  2244. 

DOMESTICS  OR  SERVANTS. 

Who  are  the  persons  called  by  lliat  name,  3172,  v.  servants. 

DOMESTIC  ANIMALS,  3382. 

DOMICIL. 

Whei'c  is  the  domicil  of  every  citizen,  42. 

Wliat  is  understood  by  the  principal  establishment  of  a  person,  ibid. 
How  a  change  of  domicil  is  produced  and  proved,  from  43  to  45. 
Of  the  domicil  of  the  public  functionaries,  46,  47. 
Of  the  domicil  of  the  minor  and  of  the  married  woman,  48. 
Of  the  domicil  of  the  persons  of  full  age  who  constantly  labor  with,  or  serve 
others,  49. 

DONATIONS. 

Intcr-vivos  and  mortis  causa,  rules  common  to  both,  from  1463  to  1509. 

General  dispositions,  from  1453  to  1455. 

Of  tiie  capacity  necessary  for  disposing  and  receiving  by  such  donations,  from 

1-156  to  1479. 
Of  the  disposable  portion  and  the  legitime,  from  1480  to  1488. 
Of  the  reduction  of  donations  which    exceed   the   disposable  portion,  from 

1489  to  1505. 
Of  dispositions  reprobated  by  law  in  donations,  from  1506  to  1509. 

DONATIONS  INTER-VIVOS. 

Defined,  1454. 

General  dispositions,  from  1510  to  1522. 

Of  the  form  of  donations  intcr-vivos,  from  1523  to  1545. 

Of  the  exception  to  the  rule  of  the  irrevocability  of  donations  inter-vivoa, 

from  1546  to  1562. 

V.  Revocation, 

DONATIONS  MORTIS  CAUSA. 
Defined,  1455. 
V.  Testaments. 

DONATIONS  MADE  BY  MARRIAGE  CONTRACT. 
To  the  husband  or  wife,  <fec.,  from  1727  to  1735, 

OF  DONATIONS  MADE  BETWEEN  MARRIED  PERSONS,  from  1736  to  1748. 

DOTAL  PROPERTY. 
Defined,  2315. 
V.  Dowry. 

DOWRY  OR  MARRIAGE  PORTION. 

What  is  understood  by  dowry,  2317,  2318. 

Wiiat  property  the  settlement  of  a  dowry  may  include,  2319. 

Dowry  cannot  be  settled  nor  increased  during  marriage,  2320. 

By  whom  it  may  be  settled,  and  of  the  obligations  in  'that  case,  from  2321 

to  2326. 
Of  the  power  of.  the  husband  on  the  dowry,  from  2327  to  2332. 
The  husband  is  not  bound  to  give  security  for  the  dowry,  2333. 
In  what  cases  the  property  of  the  dowry  is  transferred  to  the  husband,  and 

in  what  cases  not,  2334,  2335. 
An  immovable,  bought  with  the  dotal  funds,  is  dotal.  2336. 
31 


482  INDEX. 

DOWRY  OR  MARRIAGE  VOJlT101^—{Co7Uinuc<I). 

Immovables  settled  as  dowry,  Avithout  transfer  of  their  property  to  the 
husband,  cannot  be  sold  or  mortgaged,  except  in  certain  cases,  from  2337 
to  2342. 

Such  immovables  are  imprescriptible  during  the  marriage,  2343. 

Of  the  obligations  of  the  husband  with  respect  to  the  dowry,  2344. 

If  the  dowry  be  exposed  or  likely  to  be  lost,  the  wife  may  sue  for  a  separa- 
tion of  goods  from  her  husband,  2345. 

IIow  the  dowry  must  be  restored  after  the  dissolution  of  the  marriage, 
from  2346  to  2353. 

Of  the  interest  on  the  dowry,  from  what  day  it  is  due,  2326,  2353. 

Of  the  tacit  mortgage  and  privilege  which  the  wife  has  for  her  dowry,  2355. 


E 

EMANCIPATED  MINOR. 

How  the  minor  may  be  emancipated,  from  367  to  371. 

He  must  be  assisted  by  a  curator  ad  hoc,  when  his  tutor  or  cnraior  ad  bona 
renders  him  his  account,  372. 

He  has  the  full  administration  of  his  estate,  and  may  bind  himself  for  any 
sum  not  exceeding  one  year  of  his  revenue,  373,  374,  375. 

He  cannot  alienate  or  mortgage  his  immovables  or  slaves  without  judicial 
authority.  876,  nor  dispose  of  his  movables  or  immovables  by  donation 
ititcr-vivo.%  Tinless  it  be  by  marriage  contract,  and  in  favor  of  whom,  377. 

He  cannot  sue  nor  be  sued  without  being  assisted  by  a  curator  ad  litem,  378. 

The  emancipated  minor  who  is  engaged  in  trade,  is  considered  as  having  ar- 
rived at  the  age  of  majority,  for  all  acts  which  relate  to  such  trade,  379. 
V.  Emancipation,  minors. 

EMANCIPATION  OF  MINORS. 
How  it  takes  place. 

V.  Emancipated  minors. 
Tlie  emancipation  may  be  revoked,  and  of  the  effects  of  that    revocation, 

380,  381. 

EMANCIPATION  OF  SLAVES,  v.  enfranchisement. 

ENFRANCHISEMENT. 

A  master  may  enfranchise  his  slave,  at  what  age  and  with  what  formali- 
ties, from  184  to  187. 

He  cannot  do  it  in  fraud  of  his  creditors  or  forced  heirs,  190. 

He  cannot  be  compelled  to  make  such  enfranchisement,  except  in  certain 
cases,  191. 

Of  the  effect  of  an  enfranchisement  legally  made,  188,  189. 
V.  Manumitted  persons. 

ENGAGEMENT  OR  INDENTURE. 

Form  and  effects  of  the  engagements  of  indented  servants  and  apprentices, 
from  158  to  166. 

EQUITY.' 

Where  there  is  no  express  law.  the  judge  is  bound  to  decide  according  to 
equity,  21. 

When  the  intention  of  the  parties  in  a  contract  is  evident,  neither  equity 
nor  usage  can  be  resorted  to,  1958. 

In  the  absence  of  express  stipulations,  how  equity,  law,  and  usage,  may 
supply  such  incidents  as  the  parties  may  be  supposed  to  have  been  si- 
lent upon  from  a  knowledge  that  they  could  be  supplied  from  one  of  these 
sources,   1959. 

Upon  what  principle  the  equity,  intended  by  the  preceding  rule,  is  founded, 
1960. 


INDEX.  483 

ERASURE  OJ  A  MORTGAGE. 

IIow  may  be  made,  and  rules  respecting  the  same,  from  3335  to  3348. 
V.  Mortgages. 

ERASURES, 

Not  approved  by  the  testator  in  his  last  will,  are  considered  as  not  made. 
1582. 

ERROR. 

Its  division  and  effect?,  from  ISll  to  1817. 

Of  error  in  the  motive,  from  1818  to  182Y  ;  as  to  the  person,  from  1828  to 

1831;  as  to  the  nature  and  object  of  the  contract,  from  1835  to  1839. 
Of  error  of  law,   1840. 
General  provisions  applicable  to  error,  violence  and  fraud  in  contracts,  IS^S, 

1876. 

ESTATE. 

Tiiis  word"  in  general  is  applicable  to  every  thing,  of  •which  riches  or  for- 
tune may  consist. 
Of  estates  considered  in  their  relation  to  those  who  possess  them,  from  473 
to  475. 
V.  Things. 

EXCESS1':S  OR  OUTRAGES, 

Are  causes  for  which  separation  may  be  reciprocally  claimed  between  mar- 
ried jiersons,  138. 

EXCHANGE. 

Defined,  2630. 

How  it  may  take  place,  2631,  2632. 
Of  the  action  of  the  exchanger  in  case  of  eviction,  2633. 
How  the  contract  of  excliange  ma}'  be  rescinded,  from  2634  to  2636. 
What  are  the  rules  of  the  contract  of  sale  which  apply  to  the  contract  of 
exchange,  2637. 

EXCLUSION  FROM  TUTORSHIP. 

For  what  causes  it  may  take  place,  from  323  to  326,  v.  tutor. 

EXECUTION  OF  A  TESTAMENT. 

How   the   judge    shall  order  it,  from  1637  to  1641,   1643,   1650,  1681,  and 
1682. 

EXECUTOR,  v.  testamentary  executor. 

EXPENSES. 

Tiieir  different  kinds,  1337. 

In  what  manner  the  expenses,  necessary  for  the  support  and  education  of 

the  minoi",  ought  to  be  regulated,  343. 
To  what  expenses  the  usufructuary  is  liable,  564. 
What  expenses  must  be  allowed  to  the  heir  who  collates  a  real  estate  which 

was  given  to  him,  from  1334  to  1337. 

EXPERTS. 

In  tlie  public  inventories,  the  appraisement  of  the  property  inventoried  shall 

be  made  by  experts  duly  sworn,  1101. 
In  what  case  the  judge  shall  order  a  new  appraisement  by  experts  of  the 

property  to  be  divided  between  heirs,  1249. 
When  the  heirs  disagree,  experts  arc  appointed  to  form  allotments  of  the 

effects  to  be  divided,   1285,  1289. 

EXTENT  OF  THE  THING  SOLD. 

The  seller  is  bound  to  deliver  the  full  extent  of  the  premises  as  specified 
in  the  contract,  under  what  modifications,  from  2467  to  2472. 
V.  Mcasicre. 


484  INDEX. 

EXTRA-DOTAL  PROPERTY, 

Defined,  2315,  t.  paraphernalia.         C 

EXTRAORDINARY  REPAIRS. 

What  are  the  repairs  so  called,  566. 

Those  repairs  are  to  be  made  by  the  owner   of  the   thing   subject  to  ac 
usu^Vuct,  in  what  manner,  565,  570,  and  571. 
V.  Repairs. 

EVICTION. 

What  is  meant  by  this  word  in  matter  of  sale,  2476. 

Of  the  warranty  to  which  the  seller  is  subject  in  case  of  eviction,  and  of 

the  extent  and  effect  of  that  warranty,  from  2477  to  2492. 
What  is  the  duty  of  the  purchaser,  when  he  is  threatened  with  eviction, 

from  2493  to  2495. 


F 

FAILURE. 

What  is  meant  by  that  word,  3522,  No.  15. 
V.  Insolvent  circumstances. 

FAITH,  V.  good  faith,  possessor. 

FALCIDIAN  PORTION. 

What  is  meant  by  that  word,  1608. 

In  no  case  the  instituted  heir  can  claim  the  falcidian  portion,  ibid. 

FAMILY. 

What  is  the  general  meaning  of  that  word,  3522,  No.  16. 
Of  the  meaning  of  the  word  family,  as  employed  in   the    chapter   which 
treats  of  use  and  habitation,  638. 

FAMILY  MEETINGS. 

How  they  are  called,  and  of  their  object,  from  305  to  511. 

FATHER. 

The  father  is,  during  the  marriage,  administrator  of  the  estate  of  his  minor 

children,  267. 
The  fathei-  is  responsible  for  the  damage  occasioned  by  his  minor  children, 

how,  2297. 

FATHER  AND  CHILD, 
From  197  to  262. 
Of  the  duties  of  parents  towards  their  legitimate  children,  and  of  legitimate 

children  towards  their  parents,  from  233  to  253. 
Of  the  duties  of  parents  towards  their  natural  children,  and  of  natural  children 
towards  their  2:)arent3,  from  254  to  262. 
V.  Alimony. 

FATHERS  AND  MOTHERS. 

Of  their  power  iipon  their  legitimate  children,  from  236  to  238. 

Fathers  and  mothers  have  during  marriage  the  usufruct  of  the  estate  of  their 
minor  children,  until  what  time  and  under  what  obligations,  fi'om  239  to 
242  and  583. 

Of  the  obligations  of  fathers  and  mothers  towards  or  with  respect  to  their  le- 
gitimate children,  243 ;  from  251  to  253. 

Of  their  obligations  towards  their  natural  children,  from  256  to  262. 

Of  the  tutorship  by  nature  which  belongs  to  the  surviving  father  or  mother, 
from  268  to  274. 

The  right  of  appointing  a  tutor  by  will  belongs  exclusively  to  the  surviving 
father  or  mother,  275. 


INDEX.  485 

FATHERS  AND  MOTRERS— {Continued). 

IIo-w  fathers  and  mothers  inherit  from  their  legitimate  children,  899,  900. 
IIow  they  inherit  from  their  niitural  children,  916. 

Of  the  partitions  made  by  parents  and  other  ascendants  between  their  children 
and  other  descendants,  from  1717  to  1726. 

FAULT  OR  NEGLECT. 

There  are  in  law  three  degrees  of  fuilt,  SR22,  No.  17. 

The  usufructuary  is  answerable  for  such  losses  or  deteriorations  as  proceed 
from  his  fraud,  fault,  or  neglect,  560. 

The  attorney  in  fact  is  responsible,  not  only  for  unfaithfulness  in  his  manage- 
ment, but  also  for  his  fault  or  neglect,  and  to  what  extent,  2972. 

FEilALES, 

Who  have  not  attained  the  age  of  twelve,  are  said  to  be  under  pu- 
berty, 40. 

Ministers  of  the  gospel  and  magistrates  arc  forbidden  to  marry  females  under 
the  age  of  twelve  years,  93. 

The  females,  who  have  not  attained  the  age  of  twelve  years,  are  placed  under 
the  authority  of  a  tutor,  263. 

Above  that  age,  and  until  their  majority  or  emancipation,  they  are  placed 
under  the  authority  of  a  curator,  ibid, 

FENCES  IN  COMMON. 

Of  the_  making  and  repairing  of  the  fences  or  inclosures  lield  in  common 
witliin  the  cities  and  (owns,  682. 

In  the  country,  the  common  boundary  inclosures  between  two  estates  are 
made  at  the  expense  of  the  adjacent  estates;  when,  683. 

Every  fence,  which  separate  rural  estates,  is  presumed  to  be  held  in  com- 
mon, 685. 

FIDEI-COMMISSA  AND  SUBSTITUTIONS. 

Troliibited,  1507. 

FILIATION. 

Of  the  filiation  of  legitimate  children,  and  how  it  may  be  proved,  from  212 
to  216. 

FINDING  OR  INVENTION  OF  A  THING. 

One  of  the  manners  of  acquiring  property  by  occupanc}-,  3377. 

FIRE. 

Of  the  power  of  the  city  councils  to  make  regulations  in  order  to  stop  the  pro- 
gress of  fire,  668. 

In  what  case  the  lessee  is  answerable  for  the  destruction  occasioned  by 
fire,  2693. 

FISH. 

How  the  property  of  fish  may  be  acquired,  when  they  go  from  one  fish  pond 
to  another,  51  i. 

FISHING. 

One  of  the  manners  of  acquiring  property  by  occupancj',  3377. 

FORCE.  * 

What  is  meant  by  force,  3522,  No.  19. 
V.   Violence. 

FORCED  HEIRS. 

Who  are  called  so,  1482. 

Of  the  reduction  of  the  dispositions  made  to  the  prejudice  of  the  forced  heirs, 

from  1480  to  1505. 
IIow  forced  heirs  may  be  disinherited,  from  1609  to  1617. 

FOR^^IALTTIES, 

To  which  testaments  are  subject,  must  be  strictly  observed,   1588. 


486  INDEX. 

FORTUITOUS  EVENT. 

"What  is  meant  by  fortuitous  event,  3522,  No.  1. 

Of  the  efi'ects  of  fortuitous  events,  with  respect  to  the  loss  of  things  subject  to 
usufruct,  608. 

In  what  cases  fortuitous  event  or  irresistible  force  exempt  the  debtor  from 
any  damages,  on  account  of  the  inexecution  of  the  contract,  1927,  Nos. 
2,  3,  4. 

If  the  thing  sold  perished  by  a  fortuitous  event,  before  or  after  the  pur- 
chaser has  instituted  a  redhibitory  action,  by  whom  the  loss  must  be  sup- 
ported, 2511. 

V.  Irresistible  force. 

FOUNDLING. 

Of  the  right  of  the  persons  who,  from  charitable  motives,  have  received  and 

brought  up  a  foundling,  231. 
How  the  judge  may  appoint  a  tutor  to  the  foundling,  29G. 

FOWLING. 

One  of  the  manners  of  acquiring  property  by  occupancy,  SS11. 

FRAUD. 

Of  the  nullity  resulting  from  fi-aud,  from  1841  to  1843. 

General  provisions  ap2:>licable  to  error,    violence,   and  fraud    in   contracts, 

1875,  1876. 
Of  the  fraud  for  which  contracts  may  be  avoided  at  the  suit  of  persons  who 

have  not  been  parties  thereto,  from  1973  to  1979. 
Within    Avhat   time    the    action  of   nullity    on    account   of  fraud  must    be 

brought,  2218. 
The  renunciation  of  warranty  in  matter  of  redhibitory  defects  is  not  binding, 

if  there  lias  been  fraud  on  the  part  of  the  seller,  2526. 
What  is  understood  by  fraud  in  speaking  of  the  preference  which  is  given  by 

the  debtor  to  one  of  his  creditors  over  the  others,  S324. 

FREEMEN. 

Who  ai-e  considered  as  such,  38. 

FREIGHT. 

Of  the  privilege  of  the  captain  for  his  freight,  3213. 

The  cla.ini  for  freight  is  prescribed  against  by  one  year,  how,  3499,  3500. 

FRUITS. 

Of  the  several  kinds  of  fruits,  537. 

Of  natural  fruits,  ibid. 

Of  civil  fruits,  ibid. 

Fruits  of  trees  not  gathered,  are  immovable,  456. 

Of  the  fiuits  of  a  real  estate,  since  its  seizure,  457. 

All  the  fruits  belong  to  the  owner  of  the  thing  by  right  of  accession,  from 
491  to  493. 
■    They  must  be  returned  with  the  thing  by  the  possessor,  unless  he  held  it 
bona  fide,  494. 

In  case  the  thing  is  subject  to  usufruct,  all  its  fruits  belong  to  the  usufructuary, 
from  536  to  541. 

The  proceeds  or  fruits  of  the  dotal  property  belong  to  the  husband,  2329. 

In  what  c;>se  the  fruits  of  the'paraphernal  property  of  the  wife  belong  to  the 
conjugal  partnership,  2363. 

When  the  husband  is  accountable,  and  may  be  sued  for  them,  2365,  2368. 

How  the  fruits,  hanging  by  the  roots  at  the  time  of  the  dissolution  of  tho  mar- 
riage, are  divided,  2376. 

FULL  AGE,  V.  persons  of  full  age,  majority. 

FUNERAL  CHARGES. 

Of  their  privilege,  3158,  3219. 

What  is  understood  by  funeral  charges,  3159. 

How  their  amount  may  be  reduced  in  certain  cases,  3160,  3161. 


INDEX.  487 

a 

GAINS  AND  ACQUESTS,  v.  comviunitjj. 

GAMING. 

There  is  no  action  for  the  payment  of  what  has  been  won  at  gaming  or  by  a 
bet,  except  in  certain  cases,  2952;  but  the  loser  cannot  recover  what  he  has 
voluntarily  paid,  2953. 

GENERAL  DEFINITIONS  OF  RIGHT,  1,  2. 

GENERATIONS. 

The  propinquity  of  consanguinity  is  established  by  the  number  of  generations , 

each  ireneralion  is  called  a  degree,  885. 
In  the  direct  line  there  are  as  many  degrees  as  there  are  generations,  887. 
How  counted  in  the  collateral  line,  888. 

GIVING  IN  PAYMENT, 

Defined,  2625. 

In  wlmt  it  differs  from  the  contract  of  sale,  and  effects  of  this  difference,  from 

2626  to  2628. 
Rules  which  are  common  to  both  contracts,  2629. 

GOOD  FAITH. 

Of  the  effects  of  good  faith  in  matter  of  prescription  by  which  property  is  ac- 
quired, 2436,  2-439. 

Of  the  good  faith  necessary  in  the  prescription  of  ten  and  twenty  years,  from 
3442  to  3444,  3446,   3448. 

Good  faitli  is  alwaj's  presumed  in  matter  of  proscription,  344'7. 

In  the  prescription  of  thirty  year?,  good  faith  is  not  necessary,  3465,  3470. 

Of  the  good  faith  necessary  for  the  pi-escription  of  movables,  3472  ;  when  it  is 
not  required,  3475. 

Good  faith  is  in  no  case  necessary  to  claim  the  benefit  of  the  prescription 
whicli  operates  a  release  from  debt,  3496. 

GOOD  MORALS. 

The  cause  of  a  contract  is  illicit  when  it  is  forbidden  by  law,  contrary  to 
moral  conduct  or  to  public  order,  1889. 

GRANDCIIILDREX. 

When  they  are  obliged  to  collate,  and  when  they  are  reputed  to  be  exempt 
from  that  obligation,  from  1316  to  1319. 
GRANDMOTHER 

Of  the  minor  is  the  only  woman  who  may  claim  the  tutorship  by  the  effect  of 

the  law,  284,  322. 
But  she  is  not  compelled  to  accept  it,  284. 
GRATUITOUS  CONTRACTS, 

Defined,  1766. 
GUARDIAN  OF  SEALS. 

By  whom  appointed,  1079. 

When  the  seals  have  been  broken  or  altered,  the  judge  shall  take  the 
declaration  of  the  guardian  as  to  the  causes  of  such  breaking  or  alter- 
ing, 1086. 

H. 

HAZARDOUS  CONTRACTS, 

Defined,  1769. 
HABIT.VTION. 

Right  of  habitation  defined,  622.  • 

Of  the  rules  which  are  common  to  use  and  habitation,  623,  626,  627,  630,  and 

from  036  to  641. 
Of  the  security  to  be  given  by  the  person  who  enjoys  the  right  of  habitation, 
and  of  the  other  duties  imposed  ou  him,  624,  640. 


488  INDEX. 

HEIRS. 

There  are  three  sorts  of  heirs,  8l5. 
Who  is  called  the  presumptive  heir  of  a  person,  876. 
Of  unconditional  heirs,  877,   878. 
Of  beneficiary  heirs,  879. 

The  heir  is  the  universal  suceessorof  the  deceased,  880. 
Of  legitimate  heirs  and  their  difi'erent  classes,  from  882  to  884 
Howthey  contribute  to  the  iiayment  of  tlie  debts,  1376,  1377. 
Y.  Absentees,  forced  heirs. 

HERITABLE  OBLIGATIONS. 

How  an  obligation  is  heritable;  distinctions  upon  that  subject,  1992,  1994, 
1998,  and  from  2001  to  2004,  2006. 

HIRE  OF  MOVABLES  OR  IMMOVABLES. 

How  the  action  for  arrearages  of  such  hire  is  prescribed  against  by  three 
j^ears,  3503. 

HIRING,  T.  letting  and  hirivg. 

HOMOLOGATION  OR  APPROBATION  OF  THE  JUDGE. 
When  necessary',  1164,  1165,  1296,  1297,  1299,  3096. 

HORSES  AND  MULES,  AND  OTHER  ANIMALS. 
Of  their  redhibitory  defects,  2503,  2504,  2506. 

HOUSE  RENT. 

No  house  rent  is  due  by  the  widow;  during  what  time,  2391. 

HOUSES. 

The  sale  or  gift  of  a  house  ready  furnished,  includes  only  sucli  furniture  as  is 
in  the  house,  471 ;  that  of  a  house  with  all  that  is  in  it,  does  not  include 
the  money  nor  the  debts  or  other  rights,  472. 
V.  Buildings. 

HUNTING. 

One  of  the  ways  of  acquiring  property  by  occupancy,  3377. 

HYPOTHECARY  ACTION. 

How  it  may  exist  against  heirs,  1370,  1382,  1384,  1385,  1386,  1387. 

Of  the  hypothecary  action    which  is  exercised  against  the    debtor   or   his 

heirs,  3361. 
Of  the  hypothecary  action  which  may  be  exercised  against  thii'd  possessors, 

from  3362  to  3373. 
Of  the  plea  of  discussion  which  may  be  opposed  by  the  third  possessor,  and 

of  its  effects,  3366,  3367. 
Of  the  relinquishment  which  may  be  made  by  the  third  possessor,  and  of  its 

effects,  from  3.'')68  to  3372. 
Of  the  action  of  the  third  possessor  against  the  debtor,  when  he  has  either 

paid  the  debt  or  relinquished  the  property,  3373. 

HUSBAND. 

In  what  cases  the  husband  may  disown  the  child,  andin  what  cases  he  cannot, 

from  204  to  211. 
When  lie  may,  without  the  concurrence  of  his  wife,  claim  the  partition  in 

which  he  is  concerned,  1240. 
Of  the  power  of  the  husband  upon  the  dowry  of  his  wife,  2327,  from  2329  to 

2331 ;  and  upon  the  property  held  in  common  between  them,  2373. 
When  he  has  the  administration  of  the  paraphernal  property  of  his  wife, 

effects  of  that  administration,  from  2362  to  2365. 
V.  Dowry,  community,  paraphernalia. 

HUSBAND  AND  WIFE. 

Of  the  rights  of  the  husband  or  wife  of  the  absentee,  65. 
Of  the  respective  rights  and  duties  of  husband  and  wife,  from  121  to  132. 
The  husband  cannot  bo  a  witness  either  for  or  against  his  wife,  nor  the  wife 
for  or  against  her  Imsband,  2260. 


INDEX.  489 

HUSBAND  AND  'WIFE— (Continued). 

Husband  and  wife  cannot  enter  into  any  agreement,  the  object  of  which  would 
be  to  alter  the  legal  order  of  descents,  or  to  derogate  to  the  conjugal  or  pa- 
ternal authority, ^2306,  2307. 
Husbands  and  Avivcs  caunot  prescribe  against  each  other,  3489. 
V.  Married  persons. 


IDIOTS  AND  LUNATICS,  v.  persons  insane  or  interdicted. 

IGNORANCE  OF  THE  LAAV. 

No  one  can  allege  ignorance  of  the  law,  after  its  promulgation,  7. 

ILLEGITIMATE  CHILDREN. 
Who  arc  called  so,  109. 
Illegitimate  ehildfeii  are  of  two  kinds,  200. 

Who  aie  those  who  may  be  legitimated,  and  in  what  manner,  217. 
Illegitimate  children,  who  have  been  acknowledged  by  their  father,  are  called 
natural  children,  220 ;  but  though  duly  acknowledged,  they  cannot  claim 
the  riglits  of  legitimate  children,  224. 
V.  Bastards,  natural  children. 

ILL  TREATxMENTS, 

Are  a  cause  of  separation,  138. 

IMMEMORIAL  POSSESSION, 
What  it  is,  762. 

IMMOVABLES. 

A  division  of  things  is  in  movables  and  immovables,  452. 

Of  immovables  in  general,  from  453  to  468. 

Of  immovables  by  their  nature,  455  ;  by  their  destination,  459,  460  ;  by  the 
disposition  of  the  law,  456,  457,  458,  461 ;  by  the  object  to  which  they  re- 
late, 462,  463. 

IMPLEMENTS  OF  HUSBANDRY, 

Are  immovable  by  destination,  459. 

IMPOSSIBILITIES. 

What  is  considered  as  impossible  in  the  meaning  of  the  law,  2028. 

IMPOSSIBLE  CONDITIONS, 

Contained  in  donations  inter  vivos  or  mortis  causa,  are  reputed  not  ■writ- 
ten, 1506. 

How  far  impossible  conditions  may  render  void  the  agreement  which  depends 
on  them,  2026,  2027. 

IMPOTENCY. 

The  husband  cannot  disown  the  child  by  alleging  his  natural  impotence,  204. 

IMPROVEMENTS. 

The  usufructuary  may  make  improvements  and  repairs  on  the  estate  subject 

to  the  usufruct,  561 ;  but  he  cannot  claim  any  compensation  for  the  same  at 

the  expiration  of  the  usufruct,  589, 
What  improvements  he  may  set  off  against  the  damage  he  has  caused  to  the 

property  of  which  he  had  the  usufruct,  590. 
Tiic  donee,   who  collates   in  kind  a  real  estate   which  has  been   given   to 

him,    must  be  reimbursed  for   the  expenses   which   have  improved  the 

same,  1334. 

IMPUTATION  OF  PAYMENT. 
How  done,  from  2159  to  2162. 


490  INDEX. 

INCAPACITY. 

Of  beins^  tutor,  322,  325. 

Of  being  heir,  from  928  to  957,  959,  969. 

Of  disposing  or  receiving  by  donation,  from  1456  to  1418. 

Of  contracting,  1775,  1776,  1779,  1782,  1784. 

INCESTUOUS  CHILDREN. 

What  children  are  so  called,  102. 

The}'  cannot  be  legitimated,  217  ;  nor  acknowledged,  222. 
They  cannot  inherit  their  natural  fathers  and  mothers;  they  may  only  re- 
ceive alimony  from  them,  914,  1475. 

INCORPOREAL  THINGS. 
Defined,  451. 
They  are  considered  either   as   movables  or   immovables,  according  to   the 

object  to  which  they  relate,  402. 
What  incorporeal  rights  are  considered  as  immovable,  463. 
What  are  considered  as  movable,  466,  467. 

INDEPENDENT  COiS TRACTS. 
Defined,  1762. 

LN'DICATION  OF  PAYMENT. 

The  mere  indication  made  by  a  debtor  of  a  person  who  is  to  pay  in  his  place, 
does  not  operate  a  novation,  2190. 

INDIVISIBLE  OBLIGATIONS. 

How  an  obligation  is  indivisible,  from  2104  to  2106. 

Of  the  eff"ects  of  indivisible  obligations,  from  2109  to  2112. 

INEXECUTION  OF  CONDITIONS 

May  cause  the  revocation  of  a  donation  inter-vivos,   1546,   and  from  1552 

to  1555. 
Of  contracts,  v.  damages. 

INFAMOUS  PERSONS 

Cannot  be  witnesses,  2260. 

INFIRMITIES.  .         ■.  . 

Persons  incapable  of  managing  their  own  affairs  by  reason  of  infii'mities,  are 

placed  under  the  care  of  curators,  32,  409. 
Of  the  infirmities  which  may  excuse  from  tutorship,  317. 

INGRATITUDE. 

A  donation  inter-vivos  may  be  revoked  on  account  of  ingratitude,  1546. 

The   revocation   on   account  of  ingratitude   can    take    place  only    in    three 

cases,  1547. 
Within   what   time,    by   whom,    and   against   whom   the   action    must    be 

brought,  1548. 
Of  the  effect  of  that  revocation,  and  what  donations  cannot  be  revoked  for 

cause  of  ingratitude,  from  1549  to  1551. 

INJURIOUS  WORDS. 

The  action  for  injurious  words  is  prescribed  against  by  one  year,  3501,  3502. 

INN-KEEPERS  _ 

Are  responsible  as  depositaries  for  the  effects  brought  by  travellers  who  lodge 

at  their  house;  effects  of  that  responsibilit}',  from  2936  to  2940. 
Of  the  privilege  of  inn-keepers,  and  upon  what  effects  it  is  exercised,  3158, 

3178,  3180,  and  from  3199  to  3203. 
Tlieir  claims  for  lodging  and  board  are  prescribed  against  by  one  year,  3499. 

INOFFICIOUS. 

What  dispositions  are  called  so,  3522,  No.  21. 

INSANITY,  V.  interdiction,  persons  insane  or  interdicted. 


INDEX.  491 

INSCRIPTION  OR  RECORDING. 

Of  donations  intcr-vivos,  from  1541  to  1545. 

Of  articles  of  partnersliips  in  commendam,  2816,  2818,  2819. 

Of  privileges,  from  3238  to  3243. 

Of  mortgages,  from  3314  to  3334. 

INSOLVENT,  INSOLVENT  CIRCUMSTANCES. 

What  is  meant  by  being  in  insolvent  circumstances,  1980. 
What  is  the  effect  of  that  situation,  1979,  and  from  1981  to  1983. 
INSTITUTION  OF  HEIR,  v.  testamentary  dispositions. 
INTERDICTION. 

In  what  case  the  persons  insane  may  be  interdicted,  and  who  has  a  right  to 

petition  for  such  interdiction,  from  382  to  385. 
IIow  the  act  of  madness,  insanity,  or  fury,  must  be  proved  to  pronounce  the 

interdiction,  and  of  the  proceedings  thereon,  286 :  and  from  388   to  390, 

392,  406. 
IIow  the  judge  may  appoint  an  administrator  pro  tempore  during  the  pen- 

denc}'  of  tiie  suit  for  interdiction,  387. 
Every  sentence  of  interdiction  shall  be  published ;  in  what  manner ;  and  of 

the  effects  of  the  interdiction,  from  393  to  397. 
How  the  interdiction  may  be  revoked,  407,  408. 
All  persons  who,  owing  to  certain  infirmities,  are  incapable  of  taking  care  of 

their  persons  and  piopei't}^  may  be  interdicted,  409.  . 
Interdiction    does  not  take    place   on   account   of   profligacy  or   prodigal- 
ity. 413. 
Of  contracts  made  by  persons  interdicted,  1781,  1782. 

V.  Persons  interdicted. 

IN  SOLIDO,  V.  oblifjations  in  solido. 

INTEREST 

Due  on  the  balance  of  the  tutor's  account,  353. 

Interest  of  money  is  a  civil  fruit,  and  belongs  to  the  usufructuary, 
537,  540. 

Such  interest  is  supposed  to  be  obtained  day  by  day,  540. 

Interest  is  of  two  kinds,  and  of  the  rules  respecting  both,  from  1930  to  1937 
and  1939. 

Interest  upon  interest  cannot  be  recovered,  1934,  1936. 

A  demand  of  interest  against  one  of  the  debtors  in  solido,  makes  interest  run 
witli  respect  to  all,  2093. 

In  order  to  make  a  real  tender  valid,  it  must  be  made  not  only  for  the  whole 
of  the  sum  demanded,  but  also  for  the  interest  due,  2164. 

The  interest  of  the  doM-ry  begins  from  the  day  of  the  marriage,  against  those 
who  have  promised  the  same,  2326. 

From  what  day  the  interest  of  the  dowry  is  due  by  the  husband,  23.53. 

In  what  cases  the  buyer  owes  interest  on  the  price  of  the  sale  until  the  pay- 
ment of  the  capital.  2531,  2532. 

IIow  the  purchaser  may  relieve  liimselffrom  the  payment  of  interest,  2537. 

When  the  interest  of  the  sums  lent,  and  the  arrears  of  constituted  and  life  an- 
nuity, is  due,  2771. 

It  is  lawful  to  stipulate  interest  for  a  loan  either  of  money  or  of  other  movable 
things,  2894. 

Interest  is  cither  legal  or  conventional,  2895. 

Of  the  rate  of  legal  interest,  ibid;  and  of  conventional  interest,  ibid. 

The  release  of  tlie  principal  without  any  reserve  as  to  the  interest,  operates  a 
release  of  such  interest,  2896. 

INTERPRETATION  OF  AGREEMENTS  OR  CONTRACTS. 
Rules  respecting  that,  from  1940  to  1956. 
Of  legacies,  rules  respecting  it,  from  1705  to  1716.  ^ 

INTERRUPTION  OF  PRESCRIPTION. 

Of  the  causes  whicli  interrupt  prescription  tending  to  the  acquisition  of  pro- 
pert}-,  from  3482  to  3486. 


492  INDEX. 

INTERRUPTIOX  OF  rRESCRirTIOX— {Co«<«'7n<eJ). 

Of  natural  interruption,  when  it  takes  place,  3483. 

Of  legal  interruption,  3484,  3485. 

How  such  prescription  ceases  by  the  acknowledgment  of  the  debtor  or  pos- 
sessor, 3486. 

B}'  what  causes  the  prescription  operating  a  discharge  from  debts  is  inter- 
rupted, from  3516  to  3518. 

INYENTORY. 

To  be  made  of  the  property  of  absentees,  52,  6Y. 

To  be  made  by  tutors  of  minors,  329  ;  by  the  usufructuary,  or  by  the  person 
having  the  use  of  a  thing,  550,  624;  by  the  judge,  in  the  cases  where  suc- 
cessions are  under  administration,  1028,  1029,  1033,  and  from  1093  to  1096; 
by  the  testamentary  executors,  1650 ;  and  by  the  widow  who  wishes  to  pre- 
serve the  power  of  renouncing  the  community  of  gains,  2382. 

Of  the  formalities  which  must  be  observed  in  public  inventoried,  from  1098 
to  1103. 

IRREVOCABILITY. 

Of  the  exceptions  to  the  rule  of  irrevocabilitj',  from  1546  to  1562. 

IRRESISTIBLE  FORCE. 

Cases  in  which  irresistible  force  exempt  the  debtor  from  damages,  1927. 
TJie  lessee  is  not   answerable  for  the   losses  which  happen  by  unforeseen 

events,  2667. 
How  the  borrower  for  use  may  be  answerable,  though  tho  loss  of  the  thing 

happens  by  chance,  from  2870  to  2872. 
A  depositary  is  not  answerable,  when  the  thing  deposited  has  been  lost  by  an 
irresistible  event,  2917. 
V.  Fortuitous  event. 

ISLANDS. 

Cases  in  which  they  belong  to  the  nation  or  to  the  state,  or  to  the  riparian 

proprietors,  504,  505. 
How  those  which  belong  to  the  ri^iarian  proprietors  are  divided  among  them, 

506,  507. 
When    a   river   or   creek   cuts   off  and   surrounds   the   field   of  a   riparian 

owner,  and  makes  it  an  island,  the  owner  shall  keep  the  property  of  his 

field,  509. 
The  usufructuary  enjoys  the  increase  by  alluvion,  but  he  has  no  right  to 

the  islands  formed  in  a  stream  opposite  the  land  of  which  he  has  the  xisu- 

fruct,  546. 


JEWELS. 

How  the  wife  may,  at  the  dissolution  of  the  marriage,  take  back  her  linen, 
clothing,  and  jewels,  in  her  actual  use,  under  what  obligations,  2348. 

JOB. 

Of  undertakings  by  the  job  for  the  building  of  a  house  or  other  works;  rules 
respecting  them,  from  2733  to  2742. 

JOINT  OBLIGATIONS. 

When  a  joint  obligation  is  produced,  2072,  2075,  2076. 

JUDGE. 

What  is  meant  by  the  -word  judge,  as  employed  in  the  code,  3522,  No.  20. 

JUDGE'S  AUTHORITY. 

When  the  husband  refuses  to  authorize  his  wife  to  make  certain  acts  or  con- 
tracts, or  is  absent,  the  judge  may  give  such  authority  ;  in  what  cases,  and 
how,  126,  127,  129. 


INDEX.  493 

JUDICIAL  TiIORTGAGES, 
Defined,  3289. 
Eules  respecting  them,  from  3290  to  3296. 

JUDICIAL  SALES. 

Their  different  kinds,  2594. 

To  what  rules  they  .ire  subject,  2595. 

Of  sales   on   seizure   nr   execution,    by    whom   made,    and   of    their   (ffect, 

2596,  2598. 
There  is  no  warranty  against  redhibitory  vices  in  such  sales,  2597. 
Of  the  recourse  of  the  purchaser  in  case  of  eviction,  2599. 
Of  the  judicial  sale  of  the  property  of  successions,  by  whom  made,  and  of  its 

effects,  2000,  2601. 
Of  the  warranty  in  sucli  sales,  2602. 
The  heirs  m.ay  become  highest  bidders  at  siich  sales  for  the  amount  of  their 

share  in  the  succession,  in  what  manner,  2603. 

JUDICIAL  SURETY. 

What  are  the  qualifications  he  must  possess,  and  effects  of  that  suretyship, 

3033,  and  from  3035  to  3037. 
How  the  person,  who  can  give  no  security,  is  admitted  to  give  a  pledge  or 

other  sufficient  satisfaction,  3034. 

JUST  TITLE. 

What  is  understood  by  a  just  title  in  matter  of  prescription,  3450,  345L 

Of  the  just  title  which  is  necessary  to  acquire  real  property  by  the  prescrip- 
tion of  ten  and  twenty  years,  3437,  3445,  3349. 

Of  the  just  title  necessary  to  acquire  the  property  of  slaves  by  prescription  of 
less  than  thirty  years,  3444,  3445,  3349. 

Of  the  just  title  necessary  to  acquire  the  property  of  movables,  by  the  pre- 
scription of  three  years,  3472. 

The  property  of  any  kind  of  immovables  and  slaves  is  acquired  by  the  pre- 
scription of  thirty  years,  without  any  title  or  good  faith  on  the  pnrt  of  the 
possessor,  3438,  34(35. 

The  property  of  movables  is  acquired  by  ten  and  twenty  years,  without  good 
faith  or  just  title  on  the  part  of  the  possessor,  3475. 

JUSTICES  OF  THE  PEACE 

May  be  authorized  to  celebrate  marriages,  and  by  whom,  102. 

Of  the  duties  of  the  magistrates  so  authorized,  93. 

The  family  meetings  may  be  held  before  justices  of  the  peace,  and  how  they 

must  proceed  in  such  case,  from  308  to  311. 
Justices  of  the  peace  may  affix  seals  or  take  them  off,  from  1070  to  1086. 


K 

KEEPERS  OF  BOARDING-HOUSES. 
Of  their  privileges,  3178,  3180. 

KEYS. 

The  tradition  of  movable  effects  may  be  made  in  certain  cases  by  the  delivery 
of  the  keys  of  the  buildings  in  which  they  are  kept,  2453. 


L 

LABOR. 

In  what  different  ways  labor  may  be  let  out,  2716. 

LABORERS. 

Of  the  rights  and  duties  of  laborers  who  hire  themselves  out  to  serve  on 

plantations,  or  to  work  in  manufactures,  from  2719  to  2721. 
Of  their  privilege  for  their  salaries  or  wages,  3184. 
How  their  action  is  prescribed  against,  3499. 


494  INDEX. 

LANDS  AND  BUILDINGS 

Are  immovable  by  their  nature,  455. 

LAST  SICKNESS. 

(Charges  of  the)  privileged,  3158. 

What  is  called  the  last  sickness  of  a  deceased,  and  what  are  the  expenses  en« 
joying  that  privilege,  from  3166  to  3169. 

How  such  expenses  must  be  settled  by  the  judge,  3170. 
LAST  WILL,  V.  testament. 

'LK\Y. 

Of  law,  1,  2. 

Of  the  publication  of  the  laws,  from  4  to  7. 
•      Of  tlie  effect  of  laws,  from  8  to  12. 

Of  the  application  and  construction  of  laws,  from  13  to  21. 
Of  the  repeal  of  laws,  22,  23. 

LAW  CHARGES. 

What  charges  are  so  called,  3162. 

Of  their  privilege,  3158. 

Rules  resjiccting  them,  from  3163  to  3165. 

LEASE. 

How  the  lease  of  the  dotal  immovables  is  rescinded  after  a  certain  time  since 
the  dissolution  of  the  marriage,  2354. 
V.  Letting  and  hiring. 

LEGACY. 

How  testamentary  dispositions  may  be  made,  either  under  the  name  of  insti- 
tution of  heir,  or  under  the  name  of  legacy,  1598. 

Universal  legacy  defined,  1599  ;  rules  respecting  it,  from  1600  to  1603. 

Legacies  under  an  universal  title,  defined,  1604. 

Rules  respecting  them,  from  1605  to  1608. 

Of  particular  legacies,  and  of  their  rules,  from  1618  to  1636. 

General  rules  for  the  interpretation  of  legacies,  from  1705  to  1716. 
LEGAL  COMMUNITY. 

Of  acquests  and  gains,  from  2369  to  2392. 

How  such  community  is  established,  2369,  2370. 

Of  what  property  such  community  is  composed,  and  what  is  excluded  there- 
from, 2371,  2372. 

The  husband  is  the  head  and  master  of  the  partnership  or  community  of 
gains,  237p. 

Of  the  partition  of  the  common  property  after  the  dissolution  of  the  marriage, 
from  2374  to  2378. 

Of  the  renunciation  of  the  wife  or  her  heirs  to  the  community,  v.  rennn- 
ciadon. 
LEGAL  OR  TACIT  MORTGAGES. 

How  a  tacit  or  legal  mortgage  is  established,  and  under  what  restrictions, 
from  3279  to  3281. 

Of  the  legal  mortgages  of  the  minors,  persons  interdicted,  and  absentees,  on 
the  property  of  tlieir  tutors  and  curators,  and  of  those  who  have  adminis- 
tered their  property  as  such,  354,  3582,  3583,  3584. 

Of  the  legal  mortgage  of  the  wife  on  the  property  of  her  husband,  2356, 
2367,  3287. 

Of  the  other  legal  mortgages,  3285,  3286,  3288. 

LEGAL  SURETIES. 

Rules  respecting  them,  from  3033  to  3037. 

LEGATEES. 

The  universal  legatee  who  concurs  with  a  forced  heir,  must  contribute  to  the 
payment  of  the  debts,  1603. 

Of  the  duties  and  obligations  of  legatees  under  an  universal  title,  from  1605 
to  1607. 

In  what  manner  the  legatee  of  an  usufruct  under  an  universal  title,  must  con- 
tribute to  the  payment  of  the  debts,  680,  581. 


INDEX.  495 

LEGITIMACY. 

Resulting  from  marriage,  how  it  is  established,  and  may  be  disputed,  from  203 
to  211. 

LEGITIMATE  CHILDREN. 

Children  are  legitimate  or  bastards,  and  who  are  legitimate,  27,  197,  198. 
Tlie  law  considers  the  husband  as  the  fatlier  of  all  the  children  conceived 

during  the  marriage  ;  exceptions  to  that  rule,  203,  205,  206,  208. 
When  the  legitimacy  of  the  child  may  be  contested,  207 ;  within  what  time, 

and  by  whom,  207,  210,  211. 
.   When  it  cannot  be  contested,  204,  209. 
Of  the  duties  of  legitimate  children  towards  their  parents,  from  233. to  236, 

244,  245,  V.  alimoni/. 
How  legitimate  children  inherit  from  their  parents,  898. 

LEGITIMATED  CHILDREN. 

Children  legitimated  by  a  subsequent  marriage,  have  the  same  rights  as  if 
they  were  born  during  marriage,  219. 
LEGITIMATE  FILIATION. 

Of  the  manner  of  proving  the  same,  from  212  to  216. 
LEGITIMATION. 

What  children  may  be  legitimated,  and  in  what  manner,  217,  218. 
V.  Natural  children. 
LEGITLME  OR  LEGITLMATE  PORTION. 

1480,  1481,  1485. 
LENDER. 

Of  the  obligations  of  the  lender  for  use,  from  2877  to  2880. 
Of  the  obligations  of  the  lender  for  consumption,  from  2887  to  2899. 
V.  Borroivcr,  loan. 

LESION. 

How  partitions  may  be  rescinded  on  account  of  lesion,  from  1436  to  1438. 
The  action  for  rescission  of  partitions   on  account  of  lesion,   is  prescribed 

against  by  ten  j'ears,   and  such  preseription  runs  even  against  minors, 

1451,  1452. 
Lesion  in  contracts  defined,  1854. 
Of  the  effects  of  lesion  in  contracts  with  respect  to  persons  of  full  age,  from 

1855  to  1857,  and  1863. 
Of  tlie  efl'ect  of  lesion  in  contracts  with  respect  to  minors,  from  1858  to  1863, 

and  from  1866  to  1869. 
How  the  actions  on  account  of  lesion  are  to  be  conducted,  and  of  the  proof  to 

be  made  in  support  of  them,  1864,  1865. 
In  actions  brought  on  account  of  lesion  to  rescind  a  partition  or  a  sale,  the 

purchaser  may  elect,  either  to  rescind  the  sale  or  to  liave  it  confirmed  on 

paying  tlie  value,  1871. 
What  are  the  obligations  of  the  purchaser,  if  he  elect  to  rescind  the  sale,  from 

1872  to  1874. 
The  actions  for  rescission  of  contracts  on  account  of  lesion,  are  prescribed 

against  by  four  years,  and  how,  1870. 
When  siuijile  lesion  gives  occasion  to  rescission  in  favor  of  minors  or  not^ 

from  2219  to  2225,  2228. 
Of  the  rescission  of  sales  on  account  of  lesion   beyond  moiety,   from  2567 

to  2578. 
Of  the  manner  of  proving  such  lesion,  2567,  2568. 
How  the  purchaser  may  prevent  the  rescission  of  the  sale  on  account  of  such 

lesion,  2569,  2570. 
Rescission  for  having  been  aggrieved  for  more  than  half  the  value  of  a  thing 

sold,  cannot  take  place  in  favor  of  the  purchaser,  2571. 
Against  what  sales  rescission  for  lesion  lieyond  moietj'  is  not  granted,  2572. 
Of  the  effects  of  such  rescission  when  it  isgranted,  from  2575  to  2578. 
The  action  for  such  rescission  is  prescribed  against  by  four  years,  2573,  2574. 
The  rescission  on  account  of  lesion  beyond  moiety  is  not  allowed  iu  contracts 

of  exchange,  except  in  certain  cases,  from  2034  to  2636. 


49  G  INDEX^. 

LESSEE. 

Of  the  obligations  of  the  lessee,  from  2680  to  2685. 

Of  the  repairs  wliich  he  is  bound  to  make,  from  2685  to  2690. 

For  what  causes  the  lessee  ma}'  be  expelled  from  the  tenement,  and  in  -what 

manner,  from  2681  to  2684. 
Of  the  right  of  tlie  lessee  to  under-lease,  and  to  remove  the  improvements 
which  lie  has  made.  2696,  2697. 
V.  Lcxsor,  and  letting  and  hiring. 

LESSOR. 

Of  the  obligations  of  the  lessor,  from  2662  to  2674. 

Of  the  repairs  -which  he  is  bound  to  make,  2663,  2664;  and  how  the  lessee  is 

obliged  to  suffer  such  repairs  to  be  made,  2670. 
Of  the  warranty  to  which  the  lessor  is  bound  towards  the  lessee,  2665, 

2666,  2671. 
Of   the    privilege  of   the    lessor    for    the   payment  of  his   rent,    and    what 

effects  are  subject  to   such  privilege,  from  2675    to  2679,  and  from  3184 

to  3186. 

V.  Lessee,  and  letting  and  hiring. 

LETTNG  AND  HIRING. 

Of  the  nature  of  that  contract  and  its  several  kinds,  from  2639  to  2645. 

The  letting  out  of  things  defined,  2644. 

General  dispositions,  from  2646  to  2661. 

Of  the  two  kinds  of  letting  out  of  things,  and  by  what  names  the  parties  aro 

distinguished  in  that  contract,  2646,  2647. 
What  things  are  susceptible  of  being  let  oiit,  and  who  may  let  them  out, 

from  2648  to  2652. 
Of  the  form  and  duration  of  a  lease,  from  2653  to  2657. 
Of  the   notice   to  be  given  by  the   party   desiring   to  j^ut  an  end  to  the 

lease,  2656. 
When  the  lease  is  renewed  by  the  tacit  consent  of  the  parties,  from  2658 

to  2661. 
Of  the  obligations  and  rights  of  the  lessor,  from  2662  to  2679. 

V.  Lessor. 
Of  the  rights  and  obligations  of  the  lessee,  from  2680  to  2697. 

V.  Lessee. 
Of  the  dissolution  of  leases,  2667.  2669,  and  from  2698  to  2715. 
The  lessor  cannot  dissolve  the  lease  for   the  purjiose  of  occupying  himself 

the  premises,  except  in  certain  cases,  2703. 
If  the  lessor  sell  the  thing  leased,  the  purchaser  cannot  turn  out  the  tenant, 

except  in  certain  cases,  2704. 
Of  the  indemnification  which  is  allowed  to  the  tenant  in  certain  cases  of 

eviction,  and  when  such   indemnification   is    denied   to   him,    from    2706 

to  2712. 
Of  the  loss  and   extraordinary   accidents  which   may   authorize  the  tenant 

of  a  ])rcdial   estate   to   claim    an  abatement  of  the  I'ent  due  by  him, 

2714,  2715. 
Of  the  letting  out  of  labor  or  industry,  and  of  its  several  kinds,  2716. 
Of  the  hiring  of  servants  and  woi'kmen,  from  2717  to  2721. 
Uow  a  hired  servant,    attached  to  a  person  or  family,    may   be  dismissed, 

and  when  he  may  depart  without  assigning  any  cause,  2718. 
Laborers  who  hire  tliemselvea  out  to  serve  on  plantations  or  work  in  manu- 
factories, cannot  leave  the  person  who  hired  them,  or  be  dismissed  by  him,. 

unless  a  good  and  just  cause  be  shown,  from  2719  to  2721. 
Of  carriers  and  watermen. 

V.   Carriers. 
Of  plots  for  buildings,  and  other  worka 

V.  Plots. 

LICITATION. 

.  When  the  property  is  indivisible,  or  cannot  be  conveniently  divided,  it  must 
be  sold  at  public  auction  or  by  licitation,  1261. 
V.  Public  sales. 


•  INDEX.  497 

LIGHTS. 

Wliat  is  understood  by  lights,  and  of  servitudes  of  lights,  Yll,  713. 

LIMITED  COMMUNITY. 

Of  the  limited  or  modified  community  of  acquests  and  gains  betwee::  hus- 
band and  wife,  2393. 
V.    ComnutniUj. 
LIMITED  OBLIGATIONS. 

Of  tlie  limited  and  unlimited  obligations  as  to  the  time  of  their  perform- 
ance, fi-om  2043  to  2056. 
V.   Term. 
LIMITS  OR  BOUNDARIES. 

Of  fixing  the  limits  of  lands,  from  819  to  851. 

Of  the  right  which  cacli  of   the  proprietors  of  contiguous    estates  has   to 
compel  the  other  to  fix  the  limits  of  their  respective  lands,  and  whence 
that  right  is  derived,  820,  821. 
What  is  understood  by  boundary,  822. 
When  the  fixing  the   boundaries  of  lands    may  take   place,    and    between 

what  estates,  823,  824. 
By  whom  the  action  of  boundary  may  be  exercised,  from  825  to  827. 
Of  the  manner  in  which  the  fixing  of  new  boundaries,  or  the  investigation 

of  old  ones,  must  be  made,  828. 
Of  the  duties  of  the  surveyors  employed  in  fixing  limits,  from  829  to  833. 
Of  suits  respecting  the  fixing  of  limits,  in  what  manner  determined,  and  ac- 
cording to  what  general  rules,  from  834  to  850. 
Penalty  against  those  who  remove  or  pull  up  bounds,  851. 
LINEN  AND  CLOTHES. 

The  widow  may  take  them  back  at  the  time  of  the  dissolution  of  the  marriape, 
wlien  they  are  in  her  actual  use,  2348,  2385. 
LITIGIOUS  RIGHTS. 

What  rights  are  said  to  be  litigious,  3522,  No.  22,  2623. 

How  tiie  person  against  whom  a  litigious  right  has  been  transferred,  may  get 
himself  released  therefrom,  2G24. 
LITERAL  PROOF,  v.  proof. 

LOAN. 

Of  loan  and  its  kinds,  2862,  2863. 

Of  the  nature  of  the  loan  for  use,  from  2864  to  2868. 

The  loan  for  use  defined,  2864. 

It  is  essentially  gratuitous,  2865. 

What  things  may  be  the  object  of  it,  2867  ;  and  effects  thereof,  2866,  2868. 

Of  the  engagements  of  the  borrower  for  use. 

V.  Borrower. 
Of  the  engagements  of  the  lender  for  use. 

V.  Lender. 
Of  the  loan  for  consumption,  and  its  nature,  from  2881  to  2886. 
The  loan  for  consumption  defined,  2881. 
Of  the  things  which  may  be  thus  lent,  2883. 
Of  tiie  effects  of  such  a  "loan,  2882,  2884,  2885,  2886. 
Of  the  obligations  of  the  lender  for  consumption,  from  2887  to  2890. 

V.  Lender. 
Of  the  engagements  of  the  borrower  for  consumption,  from  2891  to  2893. 

V.  B  or  rover. 
Of  lo.an  on  interest,  2894. 
Of  legal  or  conventional  interest,  and  their  respective  rates,  2896. 

V.  Interest. 
LOSS. 

The  usufructuary  is  answerable  for  such  losses  as  proceed  from  his  fraud,  d«» 

fault,  or  neglect,  560. 
The  usufructuary  may  set  off  ngairst  the  damage  which  may  have  been  caused 

to  the  property  subject  to  the  usufruct,  the  improvements  he  has  made 

thereon,  when,  690. 
32 


498  INDEX. 

LOSS— Continued). 

The  usufruct  expires  by  the   loss  or  destruction  of  the   thing   subject   to 

it,   608. 
Of  tlie  loss  of  the  thing  due,  in  what  case  it  operates  the  extinguisliment  of  the 

obligation,  2216,  2217. 
When  the  borrower  for  use  is  answerable  for  the  loss  of  the  thing  lent  to  him, 

from  2870  to  2872. 

M 

MALE  CHILDREN. 

Those  who  have  not  attained  the  age  of  sixteen  years  complete,  cannot  be 
witnesses  to  a  testament,  1584. 

MALES. 

Males,  who  have  not  attained  the  age  of  fourteen  years  complete,  are  under 
puberty,  and  cannot  be  married,  40,  93. 
V.  Minors. 

MAN  OR  MEN. 

This  expression,  as  used  in  law,  includes  women,  3522,  No.  1. 

MANDATE  OR  PROCURATION. 

Of  tlie  nature  and  form  of  that  contract,  from  2954  to  2970. 

Definition  of  a  procuration  or  letter  of  attorney,  2954. 

The  mandate  may  take  place  in  five  different  ways,  2955. 

Of  the  object  of  that  contract,  and  how  it  must  be  accepted  by  the  mandatary, 

from  2956  to  2969. 
Of  the  form  in  wliicli  a  procuration  may  be  given ;  it  is  generally  gratuitous, 

from  2960  to  2962. 
It  may  be  either  general  or  special,  2963,  2964. 

What  power  is  conferred  by  a  mandate  expressed  in  general  terms,  2965. 
When  a  special   power  is   necessary,    and  when  it  is  implied,    from   2966 

to  2969. 
How  women  and  emancipated  minors  may  be  appointed  attorneys,  and  effects 

of  such  appointments,  2970. 
Of  the  obligations  of  a  person  acting  under  a  power  of  attorney,  from  2971 

to  2984. 

V.  Attorneys  in  fact. 
Of  the  mandatary  or  agent  for  both  parties,  from  2985  to  2995. 

V.  Broker. 
How  the  procuration  expires,  from  2996  to  3003. 

MANUMITTED  PERSONS 

Are  those  who,  having  been  once  slaves,  are  legally  made  free,  36. 
V.  Enfra7ichisement,  statu  liberi.  i 

MARITAL  PORTION. 

Of  the  marital  portion,  wliich  the  surviving  husband  or  wife  has  a  right  to 
claim  in  certain  cases,  2359. 

MARRIAGE. 

The  law  considers  marriage  as  a  civil  contract,  87. 

What  the  law  prescribes  with  respect  to  marriages,  88,  89. 

How  a  marriage  may  be  dissolved  before  the  death  of  the  husband  or 
wife,  90. 

How  marriage  may  be  contracted  or  made,  from  91  to  100. 

Of  the  conditions  necessary  for  the  validity  of  marriage,  91,  92. 

At  what  age  minors  may  be  legally  married,  93. 

Of  the  effects  of  a  marriage  legally  contracted,  94. 

Of  the  persons  incapable  of  contracting  marriage  together,  from  95  to  97 

The  minors,  who  have  attained  the  competent  age  to  marry,  must  have  ob- 
tained the  consent  of  their  parents,  or  of  their  curators,  if  their  parents  are 
dead,  99. 

Of  the  celebration  of  marriage,  from  101  to  111. 


INDEX.  499 

MARRIAGE— ( Continued). 

Wlio  may  celebrate  marriages,  101,  102. 

Of  the  licencD  to  be  delivered  by  the  parish  judge,  from  103  to  106. 

Where  the  mari'iage  must  be  celebrated,  and  of  the  act  of  celebration,  107. 

Of  oppositions  to  marriages,  from  108  to  110. 

No  marriage  shall  be  contracted  bj'  procuration,  111. 

Of  the  nullity  of  marriages,  from  112  to  120. 

Of  the  causes  for  which  a  marriage  may  be  annulled,  and  iipon  the  application 

of  whom,  112,  and  from  111  to  118. 
IIow  tlie  demand  in  nullity  is  inadmissible,  if  the  married  persons  have  freely 

cohabited  together  after  having  recovered  their  liberty,  or  discovered  the 

mistake,  113. 
The  marriage  which  has  been  annulled  may  nevertheless  produce  its  civii 

effects,  au\l  when,  119,  120. 
Of  the  dissolution  of  marriage,  133. 
Of  second  marriages,  and  after  the  expiration  of  what  time  the  Avidow  may 

int  ermarry,  1 34. 

V.  Husband  and  wife. 

MARRIAGE  CONTRACTS, 

Of  the  stipulations  which  may  be  legally  made  in  marriage  contracts,  from 
2."05  to  2307  ;  and  how  such  stipulations  may  be  altered  before  the  celebra- 
tion of  marriage,  2309. 

Of  the  form  of  the  marriage  contract,  2308. 

The  minor  who  is  capable  of  contracting  matrimony,  may  give  his  consent  to 
any  agreement  which  such  contract  is  susceptible  of,  2310. 

Of  the  most  ordinary  agreements  in  marriage  contracts,  2311,  2313. 

The  partnership  or  community  of  acquets  or  gains  needs  not  to  be  stipulated, 
it  exists  by  oper;ition  of  law,  2312. 

IIow  the  property  of  married  persons  is  divided  into  separate  and  common 
proper!}',  and  definition  of  both,  2314. 

How  the  separate  property  of  the  wife  is  divided  into  dotal  and  extra- 
dotal. 231.5. 

Of  the  donations  which  may  be  contained  in  marriage  contracts,  2316. 

Of  dowry  or  marriage  portion,  from  2317  to  2359. 
V.  Dowry. 

Of  paraphernalia  or  extra-dotal  effects,  from  2360  to  2368. 
V.  Paraphernalia. 

Of  the  eommimity  or  partnership  of  acquets  or  gains,  from  2369  to  2392. 
V.  Community. 

Of  the  clause  of  separation  of  propertj'^;  from  2394  to  2398,  v.  separation. 

Of  the  separation  of  property  prayed  for  by  the  wife  during  marriage,  from 
2399  to  2412,  v.  separation. 

MARRIAGE  PORTION,  v.  doxvry 

MARRIED  PERSONS. 

Of  the  respective  rights  and  duties  of  married  persons,  from  121  to  132. 

Of  donations  between  married  persons,  either  by  marriage  contract  or  during 

the  marriage,  from  1736  to  1748. 
Of  the  agreements  which  married  persons  m.ay  make  by  their  marriage  con- 
tract, v.  community,  marriage  contract,  and  separation. 
V.  Husband  and  wife. 

MARRIED  WOMEN. 

Uow  the}^  must  be  authorized  by  their  husbands,  or  by  the  judge,  from  123 

to  132,  1012,  1239,  1779. 
How  they  may  claim  a  separation  from  their  husbands,  v.  separation. 
How  a  married  woman  can  accept  a  testamentary  executorship,  1667. 
How  she  may  act  as  mandatary  or  attorney  in  fact,  1780. 
Of  the  tacit  mortgage  and  privilege  of  married  women  upon  the  property  of 

their  husbands,  2355,  2356,  2367,  3158,  3182,  v.  legal  mortgages. 


500  INDEX. 

MASTER  AND  SERVANT. 
From  155  to  196. 
Of  the  contract  made  between  the  ruaster  and  boimd  servant  or  apprentice, 

and  of  the  respective  duties  resulting  therefrom,  163,  164. 
How  such   contract  may  be  rescinded  or  dissolved,   and  for  wliat  causes, 

165,   166. 
How  a  master  may  correct  his  indented  servant  oi"  apprentice,  167. 
How  he  may  bring  an  action  against  any  man  for  beating  or  maiming  his  ser- 
vant, and  how  lie  may  justify  an  assault  in  defence  of  the  same,  168,  169. 
How  the  master  is  answerable  for  the  offences  and  quasi  offences  committed 

by  his  servants,  1*79,  2299. 
The  master  is  answerable  for  the  damage  caused  by  whatever  is  thrown  out 

of  his  house  into  the  street,  171. 
How  masters  are  answerable  for  their  slaves,  from  171  to  181  and  2300. 
How  masters  may  enfranchise  their  slaves,  and  with  what  formalities,  184, 

185,  187. 
No  master  of  slaves  pball  be  compelled  to  enfranchise  or  sell  any  of  them, 

except  in  certain  cases,  191,  192. 

V.  Enfranchisement,  engagement,  and  slaves. 

MASTERS  AND  INSTRUCTORS,  v.  preceptors,  teachers. 

MATERIALS. 

When  materials  are  considered  either  as  immovable  or  movable,  468 

Of  the  right  which  the  owner  of  the  soil  who  has  made  constructions  with 

materials  not  belonging  to  him,  has  to  retain  such  materials,  and  under 

what  conditions,  499. 
Of  the  right  of  such  owner  when  the  constructions  have  been  made  by  a  third 

person  Avith  such  person's  own  materials,  500. 

MATERNAL  DESCENT. 

Illegitimate  children  may  make  proof  of  their  natural  maternal  descent,  230. 

MATERNITY,  v.  maternal  descent. 

MATTER. 

Of  the  cases  in  which  an  artificer  or  any  other  person  has  employed  ma- 
terials which  did  not  belong  to  him  in  the  making  of  another  article,  from 
517  to  524. 

MEASURE. 

What  is  the  effect  of  sale,  when  the  thing  sold  is  designated  by  its  measure, 
from  2470  to  2475. 

MEN. 

Of  the  essential  differences  which  the  laws  have  establishedbetweenmen  and 
women,  with  respect  to  their  civil,  social,  and  political  rights,  24,  25. 

MERCHANDISE. 

Of  the  privilege  on  the  price  of  ships  or  other  vessels  in  favor  of  freighters, 
for  the  indemnity  due  to  them  for  want  of  delivery  of,  or  damage  sustained 
by  the  goods  or  merchandise  by  them  shipped,  3204. 
The  claim  of  such  freighters  on  that  account  is  prescribed  against  by  one  year, 
3501,  3502. 

MILLS, 

And  other  machinery  made  use  of  in  carrying  on  plantation  works,  are  im- 
movable by  destination,  459. 

MINISTERS  OF  THE  GOSPEL. 

When  they  may  be  authorized  to  celebrate  marriages,  and  of  their  duties  in 

that  respect,  93,  101,  103. 
They  are  dispensed  or  excused  from  the  tutorship,  312. 

NHNES. 

The  usufructuary  has  a  right  to  the  enjoyment  and  proceeds  of  mines  and 
quarries,  when,  545. 


INDEX.  501 

MINORS, 

Are  the  individuals  of  both  sexes  who  have  not  attained  tne  age  of  twenty- 
one  years,  41. 
Of  the  care  of  minor  children  whose  father  has  disappeared,  from  82  to  86. 
Minors  cannot  be  married, — to  wit,  males  under  the  age  of  fourteen  years, 

and  females  under  the  age  of  twelve,  93. 
Of  the  consent  of  parents  or  curators,  necessary  for  the  marriage  of  minors, 

and  of  the  eft'cct  of  the  want  of  such  consent,  99,  114. 
Under  what  age  minors  arc  placed  under  the  authority  of  a  trtor,  v.  tutor- 
ship, tutor. 
How  the  property  of  minors  may  be  sold,  and  with  what  formalities,  from 

S34  to  339. 
Of  the  lease  of  the  property  of  minors,  340. 
Of  tlie  tacit  mortgage  of  the  minor  ujwn  the  property  o*"  'lis  tutor,  354,  32'82, 

3283. 
The  action  of  the  minor  against  his  tutor,  respecting  the  acts  of  the  tutorship, 

is  prescribed  by  four  years  from  the  day  of  his  majority,  356. 
At  what  age  minors  i)ass  from  the  authority  of  a  tutor  to  that  of  a  curator, 

357,  v.  curators  of  iiiiiiors. 
Of  emancipated  minors,  v.  Emancipated  minors,  emancipation. 
The  fixing  of  boundaries  or  limits  of  land  must  be  done  judicially,  if  one  of 

the  parties  be  a  minor,  or  a  person  interdicted,  828. 
Minors  cannot  make  a  valid  refusal  of  an  inheritance,  without  the  authoriza- 
tion of  the  judge  and  that  of  their  tutor  or  curator,  1011. 
Partitions  must   bii  made  judicially,  if  any  minor  or  person  interdicted  is 

concerned  tlierein,  1246. 
The  minor  uiuler  sixteen  years  cannot  dispose  of  any  property  by  donation 

inter-vivos  or  causa  mortis,  except  by  a  marriage  contract,  1463,  1740,  1741, 

2310. 
The  minor  above  sixteen  can  dispose  only  mortis  causa,  1464. 
Of  the  persons  in  whose  favor  he  cannot  dispose  gratuitously,  even  when  he 

comes  of  age,  1465,  1466. 
By  whom  a  donation  made  to  a  minor,  must  be  accepted,   1533. 
A  minor  cannot  be  testamentary  executor,  1658. 
Of  the  incapability  of  minors  to  contract,  and  effects  of  that  incapacity,  from 

1775  to  1778. 
IIow  contracts  made  by  minors  may  become  valid  on  being  ratified  bj-  them, 

after  they  have  attained  the  age  of  majority,  1779,  1789,  1869. 
Persons  who  liavc  contracted  with  minors,  cannot  av.ail  themselves  of  such 

incapacity,  1785,  v.  incapacity. 
Whenminors  are  relievable  against  sim]ile  lesion  in  every  species  of  contract, 

and  when  not,  from  1858  to  1863;  from   1866  to  1868,  and  from  2219  to 

2266,  V.  lesion. 
Under  what  age  a  minor  is  incapable  of  being  a  witness  to  a  testament,  1584. 
At  what  age  a  minor  may  be  a  competent  witness  in  civil  suits,  2260. 
Of  the  tacit  mortgage  whicii  exists  in  favor  of  minors  upon  the  property  of 

their  parents,  for  tlie  price  of  the  adjudication  made  to  the  latter  of  the 

effects  held  in  common  between  tiiem,  3285. 
The  lecal  mortgage  in  favor  of  minors  exists,  though  it  has  not  been  recorded, 

3298^ 
The  prescription  by  which  property  is  acquired,  docs  not  run  against  minora, 

except  in  the  cases  expressly  provided  by  law,  3488. 
But  prescriptions,  which  operate  a  release  from  certain  debts,  run  against 

minors,  how,  3506,  3507. 

MIXED  CONDITIONS. 

What  conditions  are  so  called,  2020. 

MONEY. 

The  sale  or  gift,  of  a  house  with  all  that  is  in  it,  does  not  include  the  money 

whicli  may  be  in  tlie  house,  472. 
Of  the  collation  of  what  has  been  given  in  money,  1364. 


502  INDEX. 

MORTAR  AND  PLASTER. 

The  owner  is  supposed  to  have  attached  to  his  tenement  or  building  forever 
such  movables  as  are  affixed  to  the  same  with  plaster  or  mortar,  460. 

MORTGAGES. 

Defined,  32t5. 

In  what  mortgages  resemble  pledge,  o24S,  3247.  / 

In  what  they  differ,  3248. 

General  provisions  with  respect  to  mortgages,  from  3245  to  3256. 
Mortgage  is  conventional,  legal,  or  judicial,  3253. 
Their  respective  definitions,  3254. 
■     Of  general  and  special  mortgage,  3255. 

What  things  are  susceptible  of  being  mortgaged,  3256. 
•  Conventional  mortgages,  defined,  and  rules  respecting  them,  from  3257  to 

3278. 
Legal  or  tacit  mwtgages,  defined;  rules  respecting  them,  from  3279  to  3288. 
Judicial  mortgages,  defined,  3289. 
Of  their  particular  rules,  from  3290  to  3296. 
Of  the  rank  in  which  mortgages  stand  with  respect  to  each  other  from  3297 

to  3313. 
Of  the  inscription  of  mortgages,  from  3314  to  3334. 

V.  Recording. 
Of  the  erasure  of  mortgages,  from  3335  to  3348. 
Of  the  ofiices  of  mortgages,  and  of  the  duties  of  recorders,  from  3349  to 

3359. 
Of  the  effect  of  mortgage  with  regard  to  the  debtor,  3360,  3361. 
Of  the  effect  of  mortgages  against  third  possessors,  and  of  the  hypothecary 

action,  from  3362  to  3373,  v.  hypothecary  action. 
How  mortgages  expire  or  are  extinguished,  3374. 

MOTHER. 

After  the  dissolution  of  the  marriage,   by  the  death  of    either  husband   or 

wife,  the  tutorship  of  the  minor  children  belongs  of  right  to  the  surviving 

mother  or  father,  268. 
The  mother  is  not  compelled  to  accept  the  tutorship  of  her  minor  children; 

what  are  her  duties  in  case  she  refuses  it,  271. 
When  the  mother,  who  is  tutrix  to  her  children,  wishes  to  marry,  what  she 

must  do,   272. 
When  the  mother,  who  intermarries,  is  authorized  to  retain  the  tutoi'ship  of 

her  children,  her  second  husband  becomes  of  right  their  co-tutor,  273. 
The  right  of  appointing  a  tutor  by  testament  belongs  to  the  surviving  father 

or  mother,  but  the  mother,  who  married  again,  loses  such  righ^when,  276. 
The  father,  and,  after  his  decease,  the  mother,  are  responsible  lor  T,he  damage 

caused  hy  their  minor  children,  2297. 

V.  Father  and  mother. 

MOVABLE  EFFECTS. 

What  is  comprehended  under  the  expression  of  movable  goods,  movables,  or 
movable  effects,  470. 

MOVABLES. 

Estates  are  movable,  either  by  their  nature,  or  by  the  disposition    of  the 

law,  464. 
Of  movables  by  their  nature,  465. 
Of  movables  by  the  disjjosition  of  the  law,  from  466  to  468. 

V.  Things. 

MYSTIC  OR  SEALED  TESTAMENTS. 

Testaments,  whetlier  nuncupative  or  mystic,  must  be  drawn  up  in  ■writing 

1568. 
Of  the  form  of  the  mystic  or  secret  testament,  from  1577  to  1579. 
Of  the  opening  and  proof  of  mystic  testaments,  from  1643  to  1647. 

V.  Tedaments. 


INDEX.  503 

N. 
NATIONAL  DOMAIN. 

What  is  comprehended  under  the  name  of  national  domain,  478. 

NATURAL  CHILDREN. 

Illegitimate  children  who  have  been  acknowledged  by  their  father,  are  called 

natural  chiidi'cn,  220,  v.  acknowlcdgmcjit. 
By  whom  claims  set  up  by  natural  children  may  be  contested,  225. 
Natural  children  owe  alimony  to  their  fathers  and  mothers,  if  they  are  in 

need,  256. 
The  father  is  of  right  the  tutor  of  his  natural  child  acknowledged  by  him, 

and  the  mother  the  tutrix  of  her  natural  child  not  acknowledged  by  tho 

father,  274. 

NATURAL  FATHERS  AND  MOTHERS. 

Fathers  and  mothers  owe  alimony  to  their  natural  children,  when  they  are  in 
need,  256,  v.  alimony.  - 

NATURAL  FRUITS. 

What  are  natural  fruits,  537  ;  and  how  they  belong  to  the  usufructuary,  538. 

NATURAL  INTERRUPTION. 

Prescriptions  may  be  suspended  in  two  ways,  by  the  natural  and  by  the  legal 

interruption,  2482. 
How  a  natural  interruption  takes  place,  2483. 

NATURAL  OBLIGATIONS, 

Defined,  1750;  of  their  several  kinds,  175L 
Of  their  effect,  1752. 

NATURAL  POSSESSION. 

There  are  two  kinds  of  possession,  natural  and  civil,  3390. 
Natural  possession  defined,  3391,  3393. 
How  it  is  acquired,  3391. 

NECESSARY  DEPOSIT. 
Defined,  2935. 
How  an  inn-keeper  is  answerable  as  depositary,  for  the  effects  brought  by 

travellers  who  lodge  at  his  house,  from  2936  to  2939. 
In  what  manner  the  necessary  deposit  may  be  proved,  2940. 

NEGOTIABLE  NOTES. 

Actions  for  tiie  payment  of  bills  of  exchange  and  negotiable  notes  are  pre- 
scribed by  five  years,  3505,  3506. 

NEIGHBORHOOD. 

Of  the  servitudes  which  result  from  the  neighborhood,  from  662  to  704. 

NEW  WORKS. 

Of  new  works,  the  erection  of  which  can  be  stopped  or  prevented,  from  852 

to  865. 
What  is  understood  by  new  work,  852. 
Of  thf  opposition  wliieii  may  be  made  to  every  species  of  new  works  from 

which  injury  is  appreliended,  853,  854,  860. 
To  what  works  op])Osition  cannot  be  made,  from  854  to  856. 
Of  tlie  works  wliieh  have  been  formerly  built  on  public  2)laces,  857,  858. 
Of  t'-.e  power  wliich  tlie  corporations  of  cities  have  to  construct  on  public 

places  for  juiblic  utility,  859. 
If  the  person,  who  was  forbidden  to  continue  his  works,   will  not  suspend 

tiiem,  tlie  person  making  the  ojiposition  may  obtain  an  injunction,  how; 

and  of  the  effect  of  such  injunction,  from  861  to  865. 

NON-APPARENT  SERVITUDES. 

Servitudes  are  either  visible  and  apparent,  or  non-apparent,  724. 

Non-a))p;irent  servitudes  defined,  724. 

Continuous  non-apparent  servitudes  cannot  be  aequii-cd  by  prescription,  762. 


504  INDEX. 

NON  NUMERATA  PECUNIA. 

The  acknowledgment  of  payment  in  an  authentic  act,  can  no  longer  be  con 
tested  under  pretence  of  the  exception  of  non  numerata  pecunia,  2234. 

NOTARIES. 

Their  actions  for  the  jjayment  of  their  fees  are  ^ai-escribed  by  one  year,  S499 

NOTICE. 

If  no  time  for  the  duration  of  the  lease  was  fixed,  the  party  who  -wishes  to 
put  an  end  to  it,  must  give  fifteen  days  previous  notice  to  the  other  party, 
2656,  2660. 

Of  the  effect  of  such  notice  to  destroy  any  presumption  of  a  tacit  renewal  of 
the  lease,  3661. 

NOTIFICATION,  NOTICE. 

What  is  the  legal  meaning  of  that  word,  3522,  No.  23. 

NOVATION. 

One  of  the  ways  by  which  obligations  may  be  extinguished,  2126. 

Novation  is  a  contract  consisting  of  two  stipulations,  2181. 

What  is  necessary  to  constitute  a  c^vation,  2182,  2183. 

All  kinds  of  legal  obligations  are  subject  to  novation,   2184. 

Novation  takes  place  in  three  ways,   2185. 

Between  whom  novation  may  be  made;  it  is  not  presumed,  2186,  21 8Y. 

The  delegation  and  the  mere  indication  made  by  a  debtor  of  another  person 

who  is  to  pay  in  his  place,  do  not  opei'ate  a  novation,  from  2188  to  2190. 
Of  the  effect  of  a  novation,  fi-om  2191  to  2194. 

NULLITY. 

Of  the  nullity  of  marriages,  from  112  to  120. 

Of  the  nullity  resulting  from  fraud,  from  1841  to  1843. 

V.  Fraud. 
Of  the  action  of  nullity  or  rescission  of  agreements,  from  2218  to  2228. 

NUNCUPATIVE  OR  OPEN  TESTAMENTS. 

Nuncupative  testaments  must  be  reduced  to  writing,  1568. 

Nuncupative  testaments  may  be  made  by  public  act,  or  by  act  under  private 

signature,  15*70. 
Of  the  form  in  which  nuncupative  testaments  by  public  act  must  be  made, 

fi&m  1571  to  1573. 
Of  the  form  in  which  nuncupative  testaments  under  private  signature  must 

be  made,  from  1574  to  1576. 
Of  the  proof  of  nuncupative  testaments  under  private  signature,  1641,  1642. 
The  nuncupative  testaments  by  public  acts  do  not  require  to  be  proved,  1640. 

NURSES. 

The  expenses  of  the  last  sickness  comprehend  the  wages  of  the  nurse  who  at- 
tended the  deceased  during  his  last  sickness,  and  such  wages  are  privileged, 
3158,  3169. 

o 

OATH. 

Of  the  oath  to  be  taken  by  tutors,  328. 
By  curators,  52,  1119. 

OBJECT. 

Of  the  object  and  matter  of  contracts,  from  1877  to  1886. 

OBLIGATIONS. 

What   signifies   the   word   obligation   in    its   general    and    most    extensive 

sense,  1749. 
Obligations  are  of  three  kinds  :  imperfect,  natural,  and  civil,  1750. 
Imperfect  obligations  defined,  ihid. 


INDEX. 


505 


OBLIG  ATIOXS— ( Contimwd). 

Natural  obligations  defined,  ibid. 

Civil  obligations  defined,  ibid. 

Three  kinds  of  natural  obligations,  1751. 

Though  natural  obligations  cannot  be  "enforced  by  law,  they  have  certain 

eiiects,  1752. 
Civil  obligations,  in  relation  to  their  origin,  are  of  two  kinds   1753 
Of  conventional  obligations,  from  1754  to  1894.  ' 

V.  Contracts. 
Of  the  effects  of  obligations,  from  1895  to  1898. 
Of  the  obligation  of  giving,  from  1899  to  1919. 
Of  the  obligations  to  do  or  not  to  do,  from  1920  to  1923. 
Of    damages    resulting    from    the    inexecution    of    obligations,    from    1924 

to     1 oo  J  t 

V.  Damarim. 
Of  the  inter]>retation  of  agreements,  from  1940  to  1957. 

Of  the  obligation  to  perform,  as  incident  to  a  contract,  all  that  is  required  bv 
equity,  usage,  or  law,  from  1958  to  1962. 

^*^Tcn°°^''^^'^^  ™^"'  ^'^  avoided  by  persons  not  parties  to  them,  from  1963  to 
1989, 

Of  the  different  kinds  of  obligations,  1990,  1991. 

Of  strictly  personal,  heritable,  and  real  obligations,  from  1992  to  2014 
Of  simple  and  conditional  obligations,  from "2015  to  2037. 
Of  the  suspensive  condition,  2038,  2039. 
Of  the  resolutory  condition,  from  2040  to  2042. 
V.  Condition. 

^V''"'lf,?.o''r^  unlimited  obligations,  as  to  the  time  of  their  performance, 
from  2043  to  2056.  *  ' 

V.  Term. 
Of  conjunctive  and  alternative  obligations,  from  2057  to207l 
^'trioi's^  obligations,  joint  obligations,  and  obligations^  »i  'solido,  from  2072 

^^2979  to"'>082'^'"''^  ^°^^'"''  ^^''^'"''^  obligations  and  joint  obligations,  from 

^^.^^^^f.n"'^^  ''1"'^''  govern  obligations  between  creditors  in  solido,  from  2083 
to  208o ;  and 

Between  debtors  in  solido,  from  2086  to  2103. 

Of  obligations  divisible  and  indivisible,  from  2104  to  2106. 

Of  the  eftocts  of  divisible  obligations,  2107,  2108. 

Of  the  effects  of  indivisible  oJsligations,  from  2109  to  2112. 

Of  obligations  with  penal  clauses,  from  2113  to  2125." 

Of  the  manner  in  which  obligations  may  be  extinguished,  2126. 

V.   Compensation,  confusion,  loss,  novation,  nullity  or  rescission    mvmcnt 
prescription,  remissic'<\  '  f  J         » 

Of  the  manner  in  which  obligations  are  proved 

V.  Proof. 

OCCUPANCY. 
Defined,  3375. 

^^8376  3377 ''"^  ^"^^^  '"  '^^"''''  Property  may  be  acquired  by  occupancy, 

^''oT-o^'?  property  of  wild  beasts  and  fowls  may  be  acquired  in  that  way 

33  i  8,  3379. 
What  are  the  beasts  which  are  considered  as  being  wild  or  not,  from  3378 

to  oo^2i. 

Of  those  who  discover  or  find  precious  stones,  or  a  thing  which  is  abandoned 

by  its  master,  or  a  treasure,  3383,  3384,  3386. 
Of  those  who  find  a  movable  thing  lost  by  its  master,  3385. 
One  must  not  reckon,  in  the  number  of  things  abandoned,'  those  which  have 

Dcen  lost  in  a  shipwreck,  3387. 
How  the  manner  of  acquiring  property  by  capture  is  regulated,  3388. 

OFFICES  OF  MORTGAGES,  v.  mortgages. 


506  INDEX. 

OLOGRAPHIC  TESTAMENT, 

Must  be  drawn  up  in  writing,  1568. 

In  what  form,  and  by  whom,  1581,  1582. 

In  what  manner  it  is  proved,  1648. 

It  must  be  opened  by  the  judge  if  it  be  sealed,  how,  1648. 

ONEROUS  CONTRACTS, 

Defined,  1767. 

OPENING  OF  A  SUCCESSION. 

In  Avhat  manner  successions  are  opened,  from  928  to  943. 

OPENING  OF  A  TESTAMENT. 

lu  what  manner  testaments  are  opened,  and  when,  from  1637  to  16S9,  1648 
and  1649.  v.  testaments. 

OPPOSITION  TO  MARRIAGE,  v.  marriage. 

ORDINARY  PARTNERSHIPS. 

What  are  the  ordinary  partnerships,  2797.  v.  partnerships. 

OUTRAGES. 

Cruel  treatments  and  excesses  are  causes  for  a  separation  from  bed  and 
board,  138. 

OVERSEERS, 

Are  privileged  for  their  salaries  upon  tlie  crops,  3184. 

Their  actions  for  payment  of  their  salaries  are  prescribed  by  three 
years,  3503. 

OWNER. 

The  owner  of  the  soil  may  make  upon  it  all  plantations,  and  erect  all  build- 
ings which  he  thinlis  proper,  under  the  exceptions  established  in  the  title 
of  servitudes  of  land,  497. 
V.  Constructions. 

OWNERSHIP, 

Defined,  480 ;  who  is  said  to  be  the  owner  of  a  tiling,  481. 

Ownership  is  divided  into  perfect  and  imperfect,  482. 

When  the  ownership  is  perfect,  and  when  imperfect,  ibid. 

Rules  respecting  both  kinds  of  ownership,  from  483  to  490. 

The  right  of  ownership  subsists  independently  of  possession,  488. 

No  one  can  be  divested  of  his  property  unlefs  for  some  purpose  of  pub- 
lic utility,  and  on  consideration  of  an  equitable  and  previous  indem- 
nity, 489. 

The  ownership  of  a  thing  carries  with  it  the  right  to  all  that  the  thing  pro- 
duces, and  to  all  that  becomes  united  to  it,  either  naturally  or  artificially, 
490.  v.  accession. 


PARAPHERNALIA. 

What  is  understood  by  paraphernalia  or  extra-dotal  property  of  the  wife, 
2315,  2360. 

Of  the  power  of  the  wife  upon  her  paraphernalia,  2361. 

How  the  husband  may  have  the  administration  of  the  paraphernalia  of 
his  wife,  and  when  the  fruits  thereof  belong  to  the  community,  from  2362 
to  2365. 

How  the  wife,  who  Ims  reserved  to  herself  the  administration  of  her  parapher- 
nalia, ought  to  bear  a  proportion  of  the  marriage  charges,  2366. 

The  wife  niay  alienate  her  paraphernal  property  with  the  authorization  of  her 
husband,  2367. 

Of  the  action  of  the  wife  against  her  husband  for  the  restitution  of  her  para- 
phernal property,  and  the  fruits  thereof,  2368. 


INDEX.  507 

PAEISH  JUDGES. 

Their  actions  for  the  payment  of  their  fees  and  emoluments  are  proscribed  by 

three  _years,  8503. 

PARTICULAR  LEGACIES, 
Defined,  1618. 
Of  tho  rig]it  which  the  legatee  derives  from  the  legacy,  and  in  what  cases  the 

delivery  of  tlie  legacy  must  be  demanded,  from  1619  to  1625. 
From  what  day  the  interest  or  proceeds  of  the  thing  bequeathed  shall  accrue 

to  tiie  ben  ^fit  of  the  legatee,   1024. 
How  the  heiis  are  bound  to  deliver  the  legacy,  1626,  1631. 
Particular  legacies  must  be  discluirged  in  preference  to  all  others,  and  how 

the  legacies  of  a  certain  object  must  be  first  taken  out,  1627,   1028. 
Tlie   legacy   must   be    delivered   with   every    thing   that   appertains   to   it, 

1029,'  1030. 
The  legacy  of  a  thing  belonging  to  another  person,  is  null,  1632. 
How    tlie    licir    is    bound    to    discharge    the    legacy    of    an    indeterminate 

thing,   1033. 
A  legacy  made   to  a  creditor  shall  not  be  deemed  to  be  in  compensation 

of  tiie    debt,    nor   a   legacy   made   to  a   servant  in  .compensation  of  his 

wages,   1634. 
The  legatee,  by  a  particular  title,  is  not  liable  to  the  debts  of  tho  succession, 

excejit  in  case  of  reduction  or  mortgage,  1635. 
The  legacy  of  a  certain   object  is  extinguished  by  tho  loss  of  the  object, 

how,"  1636. 
V.  Legacies. 

PARTICULAR  PARTNERSHIPS, 

From  2806  to  2809.  v.  partnerships. 

PARTIES. 

Of  the  parties  to  a  contract,  I'J'/S. 

To  all  contracts  there  must  be  at  least  two  parties,  1758. 

Those  only  are  parties  to  a  contract  who  have  given  their  assent  to  it,  either 

expressly  or  by  implication,  1773. 
How  contracts  may  be  avoided  by  persons  not  parties  to  them,  from  1963 

to  1989. 

PARTITIONS. 

Of  the  partition  of  successions,  from  1214  to  1304,  and  from  1420  to  1452. 

Of  the  nature  of  a  partition,  and  of  its  several  kinds,  from  1214  to  1229. 

Every  partition  is  eitlier  definitive  or  provisional,  1218. 

Of  definitive  partitions,  Uiid. 

Of  provisional  partitions,  ibid. 

The  action  of  partition  cannot  be  prescribed  against,  how,  from  1227 
to  1220. 

Among  what  persons  partitions  can  be  sued  for,  from  1230  to  1244. 

In  what  innnner  the  judicial  partition  is  made,  from  1245  to  12C)8. 

When  the  property  is  indivisible  by  its  nature,  or  cannot  be  conveniently  di- 
vided, tlie  sale  of  it  is  made  at  public  auction,  from  1201  to  1204. 

Any  co-heir  may  become  a  puVchaser  at  such  sale,  up  to  the  amount  of  the 
portion  owing  to  him  from  the  succession,  1205,  1206. 

How  the  notary  is  bound  to  proceed  in  the  judicial  partition,  from  1269 
to  1304. 

IIow  the  notary  must  begin  bj- settling  the  accounts  which  each  of  tho  heirs 
may  owe  to  the  succession,  1271,  1272,  1273. 

In  what  manner  he  must  proceed  in  case  collation  is  to  be  made,  from  1274 
to  1270. 

How  t!:e  notary  shall  afterwards  proceed  to  the  formation  of  the  active  mass 
of  the  succession,  1277,  1278. 

How  ho  must  juoceed  to  the  deductions  to  bo  made  from  the  mass,  and  what 
is  understood  by  deduction,  from  1279  to  1285. 

Of  the  turniation  and  composition  of  the  lots,  and  how  they  are  formed  by  ex- 
perts, from  1286  to  1289 


508  INDEX. 

VAFJFITIOlsS— (Continued). 

If    any    contestation    arise,    the    notary    must    refer    the    parties    to    the 

judge,  1290. 
No  partition  is  made  of  the  passive  debts  of  tlie  succession,  1293. 
Of  the  effect  of  partition,  1294,  1295. 
How  the  judicial  partition  must  be  homolos;ated  by  the  judge,  and  how  the 

judge  must  decide  upon  tlie  opposition  made  to  it,  from  129fi  to  1299. 
The  rules  established  for  the  partition  of  successions  are  applicable  to  parti- 
tions between  co-proprietors  of  the  same  thing,  1304. 
1  Of  the  warranty  in  matters  of  partition,  from  1420  to  1434. 

i  Of  the  rescission  of  partitions,  from  1435  to  1452. 

,•  How  partitions  may  be  rescinded  on  account  of  lesion,  from  1436  to  1438. 

Suits  for  the  rescission  of  partitions  are  prescribed  by  the  lapse  of  ten  years, 

1451,  1452. 
The   minor,    who  obtains  relief  against  a   partition,    relieves  those  of   full 

age,  1450. 
Of  partitions  made  by  parents  among  their  children,  from  1*717  to  1726. 

PARTNERS. 

Of  the  obligations  of  partners  towards  each  other,  from  2824  to  2842. 
Of  the  obligations  of  partners  towards  third  persons,  from  2843  to  2846. 
V.  Partnerships. 

PARTNERSHIPS, 

Defined,  2772. 

Who  may  contract  a  partnership,  2773. 

General  provisions,  from  2773  to  2794. 

Of  the  several  kinds  of  partnerships,  from  2795  to  2799. 

For  what  object  commercial  partuershi2:)s  are  formed  ;  of  their  several  kinds, 

2796,  2798. 
Of  their  particular  rules,  2823. 
Ordinary  partnerships  are  all  such  as  are  not  commercial;  they  are  divided 

into  iiniversal  and  particular  partnerships,  2797. 
Of  universal  partnerships,  their  definition,  2800. 
Their  rules,  from  2801  to  2805. 

Of  particular  partnerships,  their  rules,  from  2806  to  2809. 
Of  partnerships  hi  cominendain,  2799,  and  from  2810  to  2822. 
How  the   articles  of  partnership    in  com.mendam   must   be    recorded,   2816, 

2818,  2819. 
Of  the  different  manners  in  which  partnerships  end,  from  2847  to  2861. 

V.  Partners. 

PASSAGE  {right  of). 

Who  may  claim  the  right  of  passage,  and  by  whom  such  passage  must  be 

furnished,  and  under  what  indemnity,  from  695  to  699,  704. 
Of  the  servitude  of  passage  in  cities,  715,  and  in  the  country,  718. 

V.  Eoad. 

PASSAGE  MONEY. 

If  a  woman  has  a  child  during  a  voyage  by  sea,  the  price  of  her  passage  is 
not  increased  therebj',  2724. 

PASTURAGE. 

(Right  of),  is  a  rural  servitude,  717,  and  in  what  it  consists,  722. 

PATERNAL  AUTHORITY. 

Of  the  effects  of  paternal  authority,  from  233  to  254. 
Bastards  are  not  submitted  to  the  paternal  authority,  253, 

PATERNITY. 

What  constitutes  the  presumption  of  paternity,  203. 

How  that  presumption  ceases  to  have  effect,  from  206  to  208  and  210. 


INDEX. 


)09 


PATERmTY— {Continued). 

Illegitimate  children,  who  are  free  and  white,  may  be  allowed  to  prove  their 

paternal  descent ;  but  when  they  are  of  color,  they  are  allowed  to  prove 

their  descent  from  a  father  of  color  only,  226. 
In  what  ways  the  proof  of  natural  paternal  descent  may  be  made  in  cases 

where  sucli  proof  is  allowed,  from  227  to  228. 

PATRIMONY. 

V.  Separation  of  patrimony. 

PAWN. 

Defined,  .S102. 

What  things  may  be  pawned  or  given  in  pledge,  3121,  3122. 

Of  tlie  transfer  and  other  requisites  necessary  to  give  a  claim  in  pledge,  3123. 

What  privilege  the  pawn  confers  to  the  creditor,  and  under  what  restrictions, 

from  3124  to  3129. 
Of  the   other   riglits,    which   the   creditor   acquires   on   the   thing  pledged, 

3130,  3131. 
The  creditor  cannot,  in  case  of  failure  of  payment,  dispose  of  the  pledge,  but 

he  may  apply  to  the  judge  to  order  that  the  tiling  shall  remain  to  him  in 

payment  for  its  estimated  value,  or  shall  be  sold  at  public  auction,  3132. 
Of  the  rules  relative  to  that  contract,  from  3133  to  3142. 
The  creditor  cannot  acquit  the  pledge  by  prescription,  3142. 

PAYMENT, 

Is  one  of  the  wavs  by  which  obligations  may  be  extinguished,  2126. 
What  is  meant  by  pjiyment,  2127,  2128. 
Of  payment  or  perf  irTnance  in  general,  from  2129  to  2154. 
Of  paj-nient  with  subrogation,  from  2155  to  2158. 
Of  the  imputation  of  payments,  from  2158  to  2162. 
Of  tender  of  payment  and  consignment,  from  21G3  to  2165. 
What  h.as  been  paid  through  error  or  mistake,  may  be  reclaimed,  from  2279 
to  2292. 

PAYMENT  OF  DEBTS  OF  A  SUCCESSION,  v.  Debts. 

PENAL  CLAUSE, 

Of  obligations  with  penal  clauses,  from  2113  to  2125. 

PERPETUAL  RENTS  AND  ANNUITIES 
Are  in  the  class  of  things  movable,  466. 
V.  Annuities,  Jient. 

PERSONAL  ACTION. 

Of  the  personal  action  which  is  exercised  against  the  heir,  1370. 

PERSONAL  OBLIGATIONS. 

When  an  obligation  is  personal,  1992,  1993,  1999. 
When  it  is  jiresumed  such,  1995,  1996. 

Of  the  effects  of  a  purely  personal  obligation,  with  respect  to  the  lieir,  1997, 
1998. 

PERSON. 

The  word  person,  used  in  the  law,  is  applicable  to  men  and  women,  or  either, 
3522,  No.  25. 

PERSONS. 

Of  the  distinction  of  persons,  from  24  to  41. 

Curators  are  appointed  to  persons  incapable  of  adminisiering  their  persons 

and  affairs,  32,  33,  409. 
Persons  incapable  of  contracting,  from  1785  to  1790. 
Interdicted  or  insane  persons,  31,  33,  322,  1584,  1775,  1781,  1782. 

V.  Interdiction. 
How  far  free  colored  persons  may  be  competent  witnesses  in  civil  matters, 

2261. 
Minors  of  both  sexes  are  called  persons  of  full  age,  when  they  have  attained 

the  age  of  one  and  twenty  years,  41. 


510  INDEX. 

PHYSICIANS. 

When  pli3-sicians  or  surgeons  cannot  receive  an}^  benefit  fi'ora  donations  inter- 

vivos  or  mortis  causa,  made  to  them  b}'  sick  persons,  1476. 
Of  their  privilege  for  their  salaries  for  having  attended  the  deceased  in  hia 

last  sickncj^s,  3158,  3109. 
How  this  claim  for  salaries  is  prescribed  by  three  years,  3503. 

PLEDGE. 

The  contract  of  pledge  defined,  3100. 

There  are  two  kinds  of  pledge,  the  pawn,  the  antichresis,  3101. 
General  provisions  with  resj^ect  to  the  contract  of  pledge,  from  3103  to  3120. 
V.  Antichresis,  pawn. 

PLOTS  FOR  BUILDINGS, 
Defined,  2727. 
Rules  respecting  them,  from  2728  to  2748. 

POSSESSION, 

What  is  meant  by  possession,  3380. 

Natural  and  civil  possession  defined,  from  3390  to  3394. 

What  things  are  properly  susceptible  of  being  possessed,  and  by  whom  one 
may  possess,  3395,  3396,  3408. 

How  possession  may  be  acquired,  and  by  whom,  from  3399  to  3404. 

How  possession  once  acquired,  is  preserved  by  the  mere  intention  of  the  pos- 
sessor, 3405. 

How  possession  may  be  lost,  from  3410  to  3412. 

What  rights  are  acquired  by  mere  possession,  3413. 

Of  the  nature  of  the  possession  necessary  to  prescribe. 
V.  Prescription. 

POSSESSOR. 

Of  the  possessor  in  good  faith,  and  of  the  rights  which  are  peculiar  to  him, 

3414,  3416. 
Of  the  possessor  in  bad  faith,  3415. 

Of  the  rights,  which  are  common  to  all  possessors  in  good  or  bad  faith,  from 
3417  to  3419. 

POSSESSORY  ACTIONS. 

Possessory  actions  are  prescribed  by  one  year,  3501,  3502 

POSTHUMOUS  CHILD. 

What  is  meant  by  posthumous  child,  30. 

POTESTATIVE  CONDITIONS. 

What  conditions  are  so  called,  2019,  2029. 

POWER  OF  ATTORNEY,  v.  mandate. 

PRECARIOUS  POSSESSION. 

What  is  understood  by  a  precarious  possession,  3522,  No.  27. 

PRECARIOUS  POSSESSORS. 
From  3476  to  3479. 

PRECEPTORS. 

In  what  cases  teachers  and  preceptors  have  the  same  privilege  which  is  given 

to  keepers  of  boarding-houses,  3179. 
How  the  actions  of  teachers  and  preceptors  are  prescribed,  3499,  3503. 

PREDIAL  OR  LANDED  SERVITUDES,  v.  scrviticdcs. 

PRESCRIPTION, 
Defined,  3420. 

General  provisions,  from  3421  to  3434. 
Prescription,  by  which  property  is  acquired,  defined,  3421. 
Of  the  time  necessary  for  prescription,  from  3435  to  3441. 
Of  the  prescription  of  ten  and  twenty  years,  from  3442  to  8464 


INDEX.  511 

PRESCRTPTIOX— (  Continued). 

Of  the  prescnption  of  thirty  years,  from  3465  to  3471. 
Of  pi'escriptiou  of  movables,  from  3472  to  8475. 
Of  the  causes  wliioh  prevent  sueli  prescription,  from  3476  to  3481. 
Of  the  causes  wliicli  interrui>t  prescription,  from  3482  to  3486. 
Of  the  causes  which  su^^pend  tlie  course  of  prescription,  from  3487  to  3493. 
Of  the  prescrii)tion  Avliieli  operates  a  release  from  debt,  from  3494  to  3498. 
Of  the  prescription  of  one  J'ear,  from  3499  to  3502. 
Of  the  |ireseription  of  three  years,  3503,  3504. 
Of  the  presci'ipl ion  of  five  years,  from  3505  to  3507. 
Of  the  prescription  often  years,  from  3508  to  3511. 
Of  the  prescription  of  thirty  years,  3512,  3513. 

Of  the  rules  relative  to  the  prescription  operating  a  discharge  from  debts, 
from  3514  to  3521. 

PRESERVATION  OF  A  THING. 

The  expenses  made  for  the  preservation  of  a  thing,  are  privileged,  3184,  and 
from  3191  to  3193. 

PRESUMPTIONS. 
Defined,  2263. 

Of  presumptions  established  by  law,  from  2264  to  2266. 
Of  presumptions  not  established  by  law,  2267. 

PRICE. 

Of  the  action  in  diminution  of  the  price  of  a  thing  sold,  2468,  2470,  2471, 

2475,  and  from  2519  to  2522. 
In  what  eases  a  supplement  of  the  price  may  be  required  or  not,  from  2469 

to  2475. 

PRIMOGENITURE. 

In  matter  of  legal  successions,  no  difference  of  sex,  and  no  right  of  primogen- 
itui-e  are  known,  889- 

PRINCIPAL  CONTRACTS. 
Defined,  1764. 

PRINCIPAL  AND  AGENT. 

Of  the  obligation  of  the  principal,  who  acts  by  his  attorney  in  fact,  from  2990 
to  2995. 
V.  Mandate. 

PRIVATE  V/RITINGS. 

How  domestic  books  and  papers  may  be  pi'oof  against  him  who  lias  written 
them,  2245. 

PROCEEDINGS. 

Of  the  proceedings  of  separation  from  bed  and  board,  from  140  to  143. 

Of  the  provisional  proceedings  to  which  such  a  separation  ma}'  give  occasion, 

from  144  to  148. 
Of  objections  to  the  action  of  separation  from  bed  and  board,  149,  150. 

PRIVILEGES.  ' 

General  provisions  thereon,  from  3149  to  3152. 
Their  several  kinds,  from  3153  to  3156. 
Privileges  on  movables,  3157. 
General  |irivilege3  on  movables,  3158. 
Funeral  charges,  from  3159  to  3161. 
Law  charges,  from  3162  to  316.5. 
Expenses  during  the  last  sickness,  from  3166  to  3171. 
Wages  of  servants,  from  3172  to  3174. 
Supplies  of  provisions,  from  3175  to  3180. 

Privilege  of  clerks,  and  privilege  of  wives  for  their  dowry,  B181,  3182. 
Privileges  on  particular  movables,  3183,  3184. 
Privilege  of  the  lessor,  3185,  3186. 
Privilege  of  the  creditor  on  the  thing  pledged,  3187,  3188. 


512  INDEX. 

« 
rraVILEGES— {Co«<m«eJ). 

Privilege  of  a  depositor,  3189,  3190. 

Expenses  iiieurreJ  for  the  preservation  of  the  thing,  from  3191  to  3193. 

Privilege  of  the  vendor  of  movable  effects,  from  3194:  to  3198. 

Privilege  of  inn-keepers  on  the  eliects  of  the  traveller,  from  3199  to  3203 

Privilege  on  ships  and  merchandise,  from  S'20i  to  3215. 

Privileges  on  immovables  and  slaves,  from  321G  to  3218. 

Privileges  which  embrace  both  movables  and  immovables,  3219. 

Order  in  which  privileged  creditors  are  to  be  paid,  from  3221  to  3237. 

How  privileges  are  preserved  and  recorded,  from  3238  to  32'13. 

Of  the  manner  in  which  privileges  are  extinguished,  3244. 

PRODIGALITY, 

Or  iirofiigacy,  is  no  longer  a  cause  for  interdiction,  413. 

PROIIIlilTIOX  OF  MARRIAGE. 

Between  what  persons  marriage  is  prohibited,  from  65  to  98. 

PROMISE  TO  SELL. 

A  promise  to  sell  amounts  to  a  sale,  when,  2437. 

Of  the  case  when  the  promise  to  sell  has  been  made  with  the  giving  of  ear 
nest,  2438. 

PROOF  OF  OBLIGATIONS. 

Of  the  proof  of  obligations,  and  that  of  payment,  from  2229  to  2230. 
Of  literal  proof,  from  2231  to  2254. 
Of  autiientic  acts,  from  2231  to  2236. 
Of  acts  under  private  signature,  from  2237  to  2246. 
Of  copies  of  titles,  from  2247  to  2250. 
Of  recognitive  and  confirmative  acts,  from  2251  to  2254. 
Of  testimonial  proof,  from  2255  to  2202. 
Of  presumptions,  from  2263  to  2267. 
Of  presumptions  established  by  law,  from  2264  to  2260. 
Of  presumjitions  not  established  by  law,  2267. 
Of  the  confession  of  the  parl}^,  from  2268  to  2270. 
V.  Acts,  coiifcssion,  presumptions. 

PROPERTY,  V.  ownership. 

PROPINQUITY, 

Of  consanguinity,  how  established,  885. 

PROVISIONAL  PARTITION, 
"What  it  is,  1218,  1219. 

PUBERTY. 

Males  wlio  have  not  attained  the  age  of  fourteen  years  complete  and  female* 
who  are  under  twelve,  are  under  the  age  of  puberty,  40. 

PUBLICATION  OF  THE  LAWS. 

Rules  relative  thereto,  from  4  to  7. 

PUBLIC  ADVERTISEMENTS. 

What  is  meant  by  public  advertisements,  3522,  No.  4. 

PUBLIC  FUNCTIONARIES. 

What  })ublic  functionaries  or  officers  are  excused  from  tutorship,  from  312 

to  314. 
What  is  the  place  of  domicil  of  such  persons,  40,  47. 

PUBLIC  MERCHANT. 

Of  the  power  of  the  wife,  when  she  is  a  public  merchant;  and  when  she  is 
considered  as  such,  128. 

PUBLIC  SALES. 

Of  sales  by  auction,  or  public  sales,  from  2579  to  2593. 
V.  Sales. 


INDEX.  513 

PUBLIC  THINGS. 

What  things  are  considered  as  public,  444,  445. 

PUBLIC  UTILITY, 

Is  a  cause  for  which  a  person  may  be  compelled  to  sell  Iiis  property,  489. 
V.  Compulsory  transfer  of  property. 

PURCHASER,  V.  buyer. 

Q 

QUARRIES. 

The  usufructu.try  has  the  enjoyment  of  quarries,  when,  545. 

QUASI  CONTRACTS. 
From  2271  to  2293. 

Quasi  contracts  defined,  and  of  the  acts  from  which  they  result,  22*72,  22*73. 
Of  the  rules  relative  to  tlie  transaction  of  another's  business,  from  2274  to 

2278. 
Of  the  obligations  which  result  from  the  payment  made  to  a  person  of  what 

is  not  due  to  him,  from  2279  to  2293. 

QUASI  OFFENCES. 

Every  act  of  a  man  that  causes  damage  to  another,  obliges  him  to  repair 
it,  2294. 

One  is  responsible,  not  only  for  the  damage  occasioned  by  his  own  fault, 
but  for  that  which  is  caused  by  the  act  of  persons  for  whom  he  is  answer- 
able, 2296. 

Who  are  the  persons  who  may  be  responsible  for  the  damage  occasioned  by 
others,  from  2297  to  2304. 


R 

RATIFICATION. 

A  ratification  by  a  person  of  full  age  of  any  contract  made  during  his  mi- 

noi'ity,  cures  all  defects  which  may  exist  in  such  contracts,  1869. 
Of  the  effects  of  a  contract  n  ade  by  a  person  incapacitated,  when  it  has  been 

confirmed  by  him  after  his  incapacity  has  ceased,  1789. 
The  minor  cannot  make  void  the  engagement  which  he  has  subscribed  in  his 
minority,  when  once  he  has  ratified  the  same,  2225. 
V.  Confirmative  acts. 

REAL  ACTIONS, 

Ave  prescribed  by  thirty  years,  3512. 

REAL  OBLIGATIONS.  ^ 

When  an  obligation  is  a  real  one,  1992. 

In  what  manner  real  obligations  may  be  contracted  or  created,  from  2007  to 
2014. 

RECIPROCAL  CONTRACTS,  v.  Commutative  contracts. 

RECONCILIATION. 

How  reconciliation  between  husband  and  wife  extinguishes  the  action  of 
scpaiation  from  bed  and  board,  149,  150. 

RECORDERS  OF  MORTGAGES. 

Of  their  offices,  and  of  the  books  which  they  must  keep,  from  3349  to  3354. 
Of  their  duties  and  responsibility  witli  respect  to  the  recording  of  donation* 

and  mortgages,  from  3355  to  3359. 
Of  their  duties  with  respect  to  the  erasure  of  mortgages,  3337,  3338,  3346, 

3348. 

33 


514  INDEX. 

RECORDIXG  OF  DONATIONS. 

How  donations  intcr-vlvox  must  be  recorded  in  the  recorder's  office  of  toort- 

pages,  from  1541  to  1545. 
Articles  of  pnilncisliip  in  comincndam,  iinist  be  recorded  in  the  office  of  the 

recorikr  of  mortgages,  how,  from  2816  to  2819. 
What  privileges  are  to  be  recorded  at  the  office  for  recording  mortgages,  from 

3238  to  324-2. 
What  jirivileged  claims  arc  dispensed  from  such  recording,  3243. 
Of  tlie  mode  and  cffoct  of  recording  mortgages,  from  3314  to  3334. 

V.  Mortgafjcs,  recorders  of  inortgagcu. 

REDEMITION. 

Tlie  jiower  or  rii;ht  of  redemption  defined,  2545. 

The  right  of  redemption  cannot  be  reserved  for  a  time  exceeding  ten  yeal•^ 

2540. 
The  time  fixed  must  be  rigorously  adhered  to,  2547,  2549. 
Of  tlic  rights  and  obligations  of  the  veinlor,  who  has  made  a  sale  under  such 

a  reservation,  '2.J5U,  '25.58,  from  2501  to  2500. 
How  the  vendor  is  precluded  from  exercising  the  right  of  redemption,  2548, 

2541). 
Of  tlie  rights  and  obligations  of  the  buyer,  who  has  purchased  a  thing  under 

such  a  clause,  2551  to  2557. 

REDHIBITION. 
Defined,  2490. 

For  what  defects  or  vices  redhibition  may  be  exercised,  from  2498  to  2507. 
Within  what  time  the  rcdiiibitory  action  must  be  instituted,  2512,  2513. 
In  what  cases  the  redhibitory  action  is  denied,  2515. 
Uow   it  is  exercised  by  the  heirs  of  the  buver  or  against  the  heirs  of  the 

seller,  2510,  2.')17. 
Other  rules  with  respect  to  that  action,  2503,  and  from  2509  to  2511,  2514 

to  2518. 

REDHIBITORY  DEFECTS  OR  VICES. 

Fur  wliat  defects  or  vices  of  a  thing  sold,  the  sale  may  be  rescinded,  or  a  re- 
duction of  the  price  granted,  2497,  2498. 

Of  sueli  defects  with  respect  to  inanimate  things,  2499. 

Of  tlie  redliibitory  vices  or  defects  of  both  slaves  and  animals,  2500, 
2501,   25(14. 

Of  the  redliibitory  vices  of  slaves,  2502,  2504,  2505. 

Of  the  redhibitory  vices  of  animals,  2503,  2504,  2506. 

Of  the  vices  of  the  thing  sold,  wliicli  occasion  a  reduction  of  the  price,  from 
2519  to  2522. 

Of  the  vices  of  the  thing  sold,  which  the  seller  has  concealed  from  the  bu^'cr, 
from  2523  to  2520. 

REDUCTION. 

Of  the  reduction  of  the  donations  i7iter-vivos  or  mortis  causa,  which  exceed 
the  disposable  portion,  from  1489  to  1505. 

UELATIONS. 

Of  the  legal  tutorship  which  must  be  given  to  the  nearest  of  kin  in  the  col- 
lateral line,  who  comes  immediately  after  the  presumptive  heir  of  the 
minor,  285. 

Of  tlic  responsibility  of  the  relation,  even  in  the  fourth  degree,  who  refuses  to 
take  charge  of  tlie  tutorship,  280. 

Under  the  name  of  relations  are  not  included  connections  by  affinity,  287. 

Of  the  responsibilit}'  of  the  minor's  relatjons,  who  neglect  to  apply  to  the 
judge  iu  order  to  have  a  dative  tutor  appointed  to  such  minor,  from  290 
to  293. 

In  matters  of  successions  among  collateral  relations,  he  who  is  the  nearest  in 
degree  excludes  all  the  others,  910. 


INDEX.  516 

RELEASE. 

Of  the  prescription  wliich  operates  a  release  from  debt,  from  3494  to  3520. 
V.  Remission. 

REMISSION 

Is  one  of  the  ways  by  which  obligations  are  extinguished,  2126. 
Of  the  remission  of  the  debt,  rules  respecting  it,  from  2195  to  2202. 

REMOVAL 

Of  tutors  and  curators,  and  causes  for  which  they  may  be  removed  or  sus- 
pended, fi'om  323  to  320. 
Causes  for  which  curators  to  vacant  estates  may  be  removed  or  superseded, 
from  1149  to  1152. 

RENT. 

The  contract  of  rent  of  lands  defined,  2760. 
Rules  relative  thereto,  fron\  2751  to  2763. 
V.  Annuities. 

REPAIRS. 

What  repairs  the  usufructuary  is  bound  to  make,  565. 

Extraordinary  repairs  are  to  be  made  by  the  owner,  and  what  is  meant  by 

extraordinary  repairs,  565,  506. 
Rules  respecting  the  said  repairs,  from  567  to  671. 
Of  the  repairs  to  be  made  by  the  lessor,  2663,  2064. 
Of  the  repairs  to  be  made  by  the  lessee,  from  2685  to  2692. 

REPEAL 

Of  laws,  22,  23. 

REPEALING  CLAUSE. 

Repeal  of  the  ancient  laws  formerly  in  force,  3521. 

REPRESENTATION. 

Right  of  representation  defined,  890. 

Representation  takes  place  ad  infinitum  in  the  direct  descending  line,  891 , 

does  not  take  place  in  favor  of  ascendants,  892. 
In  the  collateral  line,  representation  is  admitted  in  favor  of  the  children  and 

descendants  of  the  brothers  and  sisters  of  the  deceased,  how,  893. 
Other  rules  with  respect  to  representation,  from  894  to  897. 

RESCISSION. 

Of  the  rescission  of  partitions,  from  1435  to  1452. 

Of  the  action  of  nullity  or  rescission  of  agreements,  from  2218  to  2228. 

Of  tlie  rescission  of  sales  on  account  of  lesion,  from  2567  to  2578. 

Wlicn  rescission  on  account  of  lesion  may  take  place  in  contracts  of  exchange^ 

from  2634  to  2636. 
Action  for  rescission  of  contracts  arc  prescribed  by  five  years,  3507. 
V.  Lesion,  nvilily. 

RESIDENCE. 

V.  Domicil. 

RESOLLTORY  CONDITIONS 
Defined,  2040. 
Rules  relative  thereto,  2041,  2042. 

RESPITE 

Defined,  3051. 

The  respite  is  cither  voluntary  or  forced,  definition  of  both,  3052. 

How  and  when  the  forced  resfiite  takes  place,  2053. 

What  course  the  debtor  must  follow  to  give  to  the  respite  its  full  effect,  from 

3054  to  3067. 
IIow  the  contract  of  respite  must  be  homologated,  3058,  3059. 
Of  the   creditors   who    arc    obliged   to    abide   by   the   respite,    from    3060 

to  3062. 
The   time   allowed   to   a  debtor   in   a   forced   respite  cannot  exceed   three 

years,  3063. 


516  INDEX. 

RETAIL  DEALERS  OF  PROVISIONS 

Have  a  privilege  during  a  year  from  the  first  supply,  8176. 
Tlie    action   of   retailers   of  provisions   and    liquors   is   prescribed  by   one 
year,  3499. 

RETROSPECTIVE  EFFECT. 

The  law  cannot  have  a  retrospective  effect,  8. 

RETURN  (Right  of). 

Donations  inter  vivos  are  liable  to  be  revoked  or  dissolved  on  account  of  the 
legal  or  conventional  return,  1546. 

REVOCATION. 

How  contracts  may  be  revoked  or  avoided  by  persons  not  parties  to  them, 

from  1963  to  1989. 
For  what  causes  donations  inter  vivos  may  be  revoked,  froin  1546  to  1562. 
Of  their  revocation  on  account  of  ingratitude,  from  1548  to  1551. 
Of  their  revocation  for  the  non-fulfilment  of  the  eventual  conditions  ■which 

suspended  their  consummation,  1552,  1553. 
Of  their  revocation  for  the  non-jierformance  of  the  conditions  imposed  on  the 

donee,  1554,   1555. 
Of  their  revocation  or  rescission  on  account  of  the  donor's  having  children 

after  the  donation,  from  1556  to  1562. 
Of  their  revocation  on  account  of  the  legal  or  conventional  return. 

V.  Return. 

REVOCATION  OF  TESTAMENTS. 
From  1683  to  1689,  1703. 

RISK. 

At  whose  risk  is  the  thing  before  delivery,  from  1903  to  1912. 
As  soon  as  the  contract  of  sale  is  completed,  the  thing  sold  is  at  the  risk  of  the 
buyer,  except  in  certain  cases,  from  2442  to  2448. 

RIVERS. 

The  use  of  the  banks  of  navigable  rivers  is  public,  but  their  property  belongs 

to  tlie  adjacent  owner,  446. 
What  is  meant  by  tlie  bed  of  a  river  or  stream,  448. 
Of  tlie  alluvions  and  derelictions  Avhich  are  formed  in  the  rivers,  to  whom 

they  belong,  501. 
Of  the  case  in  which  a  river  or  creek  carries  away,  by  a  sudden  eruption,  a 

considerable  tract  of  land,  503. 
Of  the  islands  and  sand-bars  which  are  formed  in  the  beds  of  navigable  rivers 

or  streams,  to  whom  they  belong,  and  how  they  are  divided,  from  504  to 

507,  509. 
Of  the  case  where  a  river  or  creek  opens  itself  a  new  bed,  509,  510. 

ROADS 

Are  of  two  kinds,  public  and  private,  700. 
Of  public  roads,  701,  703,  704. 
Of  private  roads,  702. 
V.  Passage. 

ROOF. 

Manner  of  carrying  off  rain  from  the  roof,  694. 

RUNNING  WATER. 

Of  the  use  which  he  whose  estate  borders  on  running  water  may  make  of  it 
for  the  purpose  of  watering  his  estate,  657. 

RURAL  SERVITUDES. 

What  is  meant  by  rural  servitudes,  706. 
Of  the  several  kinds  of  rural  servitudes,  717. 


INDEX.  517 

S 

SALE. 

Of  the  n<ature  and  form  of  the  contract  of  sale,  from  2413  to  2419. 

Of  the  persons  capable  of  buying  and  selling,  from  2420  to  2422. 

Of  things  which  may  be  sold,  from  2423  to  2430. 

How  the  contract  of  sale  is  to  be  performed,  from  2431  to  2441. 

At   whose  risk   is   the   thing   sold   after   the   sale   is   complete,   from  2442 

to  2448. 
Of  the  obligations  of  the  seller,  from  2449  to  2451. 

V.  Seller. 
Of  the  tradition  or  delivery  of  the  thing  sold,  from  2452  to  2475. 

V.  Delivery. 
Of  the  warranty  in  case  of  eviction   of  the  thing  sold,  from  247G  to  2495. 

V.  Eviction. 
Of  the  vices  of  the  thing  sold  which  gives  occasion  to  the  redhibitory  actioH, 

from  2496  to  2518. 

V.  Redhibitorif  action  and  redhibitory  vicci. 
Of  the  vices  of  the  thing  sold,  which  occasion  a  reduction  of  the  price,  from 

2519  to  2522. 
Of  the  vices  of  the  thing  sold,  which  the  seller  has  concealed  from  the  buyer, 

from  2523  to  2520. 
Of  the  obligations  of  the  buj'cr,  from  2527  to  2543. 

V.  Buyer. 
Of  the  nullity  and  rescission  of  the  s.ale,  2544. 
Of  the  power  or  right  of  redemption,  from  2545  to  2566. 

V.  Redemption. 
Of  the  rescission  of  sales  on  account  of  lesion,  from  2567  to  2578. 

V.  Lesion,  rescission. 
Of  sales  by  auction  or  public  s.ales,  from  2579  to  2594. 
Of  judiciii'i  sales,  2594,  2595. 
Of  sales  on  seizure,  from  2596  to  2599. 

Of  the  judicial  sale  of  the  property  of  successions,  from  2600  to  2603. 
Of  the  compulsory  transfer  of  propertj',  from  2604  to  2611. 

V.  Compulsory  transfer. 
Of  the  assignment  or  transfer  of  debts  or  other  incorporeal  rights,  from  2612 

to  2624. 

V.  Assignment. 
Of  the  giving  in  p.-iymenfe,  from  2625  to  2629. 

V.  Giving  in.  payment. 
Sale  of  the  property  of  vacant  estates,  how  made,  from  1153  to  1166,  and 

1202,  1203. 

SEA. 

Tlie  sea  and  its  shores  are  among  things  which  are  common  for  the  use  of 

every  bod}-,  441. 
What  is  meant  by  sea  shore,  and  what  results  from  its  jtublic  use,  442,  443. 

8EATJ=5. 

What  is  meant  bj-  seals  in  matters  of  succession,  1068. 

When  seals  must  be  affixed,  and  by  whom,  from  1069  to  1072. 

Who  is  bound  to  give  notice  of  tlie  death  of  a  person  whose  heirs  are  not  all 
in  the  place,  1073,  1074. 

In  wliat  manner  seals  must  be  affixed,  and  of  the  duties  of  the  judge  or  justice 
affixing  the  same,  from  1075  to  1080. 

Of  the  gunrdian  whom  the  judge  or  justice  must  appoint  to  take  care  of  the 
seals,  1079. 

Of  tlie  manner  in  which  the  seals  must  be  taken  off,  from  1082  to  1086. 

How  tliose,  who  maliciously  break  or  alter  seals,  arc  liable  in  dama- 
ge*   1087. 


518  INDEX. 

SEAMEN. 

Of  their  privilege  for  their  wages  on  the   price  of  ships   and  other    ves- 
sels, 3204:. 
Tlieir    claim,    with    respect   to   said   wages,    Is   prescribed    by    one    year, 
3499,  3500.         j 

SECOND  MARRIAGES. 

The  wife  shall  not  be  at  liberty  to  contract;  another  marriage  nntil  ten  months 
after  the  dissolution  of  the  preceding  marriage,  134. 

Donations  by  those  who  contract  a  second  or  subsequent  marriage  are  re- 
stricted within  certain  limits,  from  1745  to  1748. 

SECURITY. 

Of  the  security  to  be  given  by  the  curator  of  absentees,  52 ;  by  the  heir? 

who  are  sent  into  provisional  possession  of  the  estate  of  an  absentee,  66 ; 

by  the  tutors  of  minors,  330,  331  ;  by  the  usufructuarj',  frpm  551  to  553, 

and  from  555  to  557  ;  by  the  administrator  appointed  to  the  estate,  the 

heir  of  which  has  taken  the  benefit  of  inventory,  1041;  by  the  curators  to 

vacant  estates  and  to  absent  heirs,  from  1119  to  1125 
The  testamentary  executor  is  not  bound  to  give  security,  except  when  he  is 

appointed  by  the  judge,  1667,  1670,  1672. 
In  what  case  a  person  may  be  bound  to  give  a  new  security    in  place  of 

a  former  one  who  has  failed  or  become  insufficient,  2050,  2051. 
Of   the    effects  of  suretyship  between  the  creditors  and   the  surety,    fi-om 

3014  to  3020. 
Of  the  effects  of  suretvship  between  the  debtor  and  the  surety,  from  3021 

to  3026. 
Of  the  effects  of  suretyshi])  between  the  sureties,  3027. 

SEIZIN. 

A  succession  is  acquired  by  the  lawful  heir,    immediately  after  the  death 

of   the    person    to    whom  he  succeeds ;  effects  of  such    seizin,    from  934 

to  942. 
Tlie  same  rule  applies  to   testamentary    heirs    or  .'\niversal    legatees,    934, 

1602;  but  not  to  particular  legatee,  or  legate(4»,-_iider  an  universal  title, 

934,   1G05,  1619;  nor  to  natural  children  or  to  the  surviving  husband  or 

wife,  943, 
Of  the  seizin  of  the  testamentary  executor,  1652,  1653. 
The  heirs  can  at  any  time  take  the  seizin  from  the  testamentary  executor, 

under  what  condition,  1664. 
SEIZURE. 

How  sales  on  seizure  are  made,  and  by  whom,  2596. 

Such  sales  do  not  give  rise  to  the  redhibitory  action,  2597. 

Of   the  effects  of   such    sales,    and  the  recourse  wlaich   the   purchaser  may 

have  in  case  of  eviction,  2598,  2599. 

SELLER. 

Of  the  obligations  of  the  seller,  from  2449  to  2451. 

Of  the  tradition  or  delivery  of  the  thing  sold,  from  2452  to  2475, 

V.  Delivery. 
Of  the  warranty  in  case  of  eviction  of  the  thing  sold,  from  2476  to  2495. 

V.  Eviciion. 
Of  the  warranty  on  account  of  redhibitory  vices,  from  2496  to  2526. 

V.  Redliihition,  redhibitori/  vices. 

SEPARATE  PROPERTY  OF  THE  WIFE.  . 

Of  what  it  consists,  2314. 

SEPARATION  FROM  BED  AND  BOARD. 

Of  the  causes  of  separation  fiom  bed  and  board,  from  135  to  139. 

Of  the  proceedings  for  separation  from  bed  and  board,  from  140  to  143. 

Of  the  provisional  proceedings  to  which  a  suit  for  separation  may  give  occa 

sion,  from  144  to  148. 
Of  objections  to  the  action  of  separation  from  bed  and  board,  149,  150. 
Of  the  effects  of  separation  from  bed  and  board,  from  151  to  154. 


INDEX.  -,Q 

SEPARATION  OF  GOODS  OR  PROPERTY 

\'a,l  Sr  ''^  ''1'^'^^'"'^  ''*'  P>-opci-tj   contained  in  the    marriage   con- 
Effects  of  that  clause,  from  2395  to  2398 

Of  the  separation  of  property  prayed  for  by  the  wife  during,  marrinire   2391, 

Of  (he  causes  for  winch  such  separation  nlay  be  prayed  fo"    and  of  the  nro- 

ceedings  thereon,  from  2399  to  2403.  ^  ^ 

^^tTuiL  "'^  ''^l""'''^'''''  ''^  property,  from  2404  to  2406 ;    and    from  2410 

''^i^"iil;^;.:rty;^;;;?:"i:;;:''  ^'^^  •'"^^^'^^  «^  -^^  -^'^  -^p-^  ^o  separa. 

"o7tW  .tf'  r  ^°'7\  *"  T-l'^^''^''  ^'^  ^^''  household  expenses,  and  to  those 
propcrt3^  270;)?''  ''  "'"'      '''  ^'""'"^  ''^'"'"'''^  lier  separation  ol 

SEPARATION  OF  PATRIMONY. 

'^''mtrimonv  of^lT'^ .l''''^  '^''^^VV'^^^*  ^^  ''^^^  *'»«  separation  of  the 
MOO  doT  if'  ff."''  deceased  from  that  of  the  lieir.  1370,  1397. 
monW397.'  ^''^''  '''"'^  ^'  '"^^'^  '^''  separation  of  patri^ 

What  are  the  object  and  eflfects  of  that  separation,  1398,  1399 

1402    1403.  ^''''''"'   ^'''^''   *'''    '''^^'"'■'   '''•'y   ^"""°<^  «"«^  separation. 

^Mw  to'TliT'  '""^  ''''^'""  ""^""^  ^''"'  '"'■''  ^  ^'™'"^  "^"'^  ^«  "^''^^^^'  f"-"™ 

'^'tiri^l\?of1l!^'-''V^'^V''^'".''\'  "^'''*^^  demanding  the  separation  of 
tiie  estate  ot  the  hoir  from  tluxt  of  the  succession,  1412 

SEQUESTRATION, 

Is  either  conventional  or  ordered  by  the  judge  2941 
Conventional  sequestration  defined,  2942.  ' 

Rules  relative  the    ♦^o,  from  2942  to  294?'. 
Of  the  duties  of  the  ocquestrator,  294G,  2947. 
Judicial  sequestration  or  deposit  defined    2948 

What  obligations  are  created  by  such  sequestration,  2949;  and  to  whom  the 
judicial  sequestration  is  confided,  2950.  lu  wnom  me 

SERVANTS. 

Of  master  and  servant,  from  155  to  190. 

There  arc  two  cl.asses  of  servants,  the  free  servants  and  the  slaves   155. 

Of  free  servants,  from  15G  to  171. 

How  man}^  kiucls  there  are,  157. 

How  thp'"may  engage  thcn,selves  or  be  engaged,  and  of  the  form  and  effect 

of  such  contract,  from  158  to  104. 
In  what  cases  such  contract  may  be  rescinded  or  dissolved,  105   166 
Ot    he  power  of  the  master  upon  his  indented  servant  or  apprentice,'  167 
Ot  the  hiring  of- servants  and  workmen,  from  2717  to  '>7'>1 

Sl'srsmTsn'!''"''""  ^"'"  ^'''''"  ''"^''''  "'"^  ''^  ^'''  '""^'"'^  "^  ^^'""^  privilege. 
Who  are  those  who  iire  considered  as  servants  or  domestics,  3172. 
iheir  acjiions  for  their  wages  are  prescribed  by  one  year  3499 

V.  Apprcnticr,  master,  slave  j  j       t 

SERVITUDES  OF  LAND. 

Gencrnl  principles,  from  642  to  654. 

^'^GSo'to'esg'  '''"'"''  '"■'^""°'**'  ^'■*""  ^^°  "'^*»'''^1  situation  of  the  place,  from 
Of  servitudes  imposed  by  law,  from  660  to  670. 
Of  walls,  fences,  and  ditches  in  common,  from  071  to  687 
"  from  b^88^?o"  e'gL   '^"  '"^"'•'"'^'^'"'•3-  ^'"'•'^^  required  for  erecting  buildings, 

Of  sights  on  (he  property  of  a  neighbour.  692,  693. 


520  INDEX. 

SERA^TUDES  OF  LA'SD—iCoiiimucd). 

Of  the  innincr  of  carrying  off  rain  from  the  roof,  694. 

Of  the  riglit  of  passage  and  of  way,  from  695  to  704. 

Of  conventional  or  voluntary  servitudes,  from  705  to  767. 

Of  the   several   kinds  of  conventional  or   voluntary  servitudes,    from  706 

to  724. 
How  servitudes  are  established,  from  725  to  754. 
How  servitudes  are  acquired,  from  755  to  7g7. 
Of  the  rights  of  the  j^roprietor  of  the  estate  to  which  tlw  servitude  is  due, 

from  768  to  778. 
How  servitudes  are  extinguished,  from  779  to  818. 
Continuous    and  apparent   servitudes    are   acquired   by   prescription,    how 

3470. 

SEVERAL  OBLIGATIONS. 

Where  there  are  more  than  one  obligor  or  obligee,  the  obligation  may  be 

several  or  joint,  or  in  solido,  2072. 
How  several  obligations  are  produced,  2073,  2074. 

SEX. 

What  differences  the  laws  have  established  between  men  and  women,    on 

account  of  tlie  difference  of  sexes,  24,  25. 
In  matter  of  legal  successions,  no  difference  of  sex  is  known,  889. 

SHERIFFS. 

Their  actions  for  the  payment  of  their  fees  are  prescribed  by  three  years, 
3503. 

SHIP  MASTERS. 

Of  their  privilege  for  their  wages  or  salaries  on  the  last  voyage,  2726,  3204. 

Of  the  privilege  of  tlie  sliip  master  or  captain  for  his  freiglit,  3213. 

Their  actions  lor  their  freight  and  salaries  are  prescribed  by  one  year,  3499. 

SHIPS. 

Of  the  privilege  which  may  exist  on  ships  and  merchandise,  from  3204 
to  3215. 

Ships  and  vessels  are  susceptible  of  being  mortgaged,  3256. 

Of  the  privilege  for  the  supply  of  wood,  and  other  things  necessary  for 
the  construction,  equipment,  and  provisioning  of  ships  and  other  ves- 
sels, 3204. 

How  the  action  for  such  supjily  is  prescribed  by  one  year,  3499. 

SIGNATURE. 

The    person   against  whom  an  act  under  private  signature  is  produced,    is 

obliged  formally  to  avoAV  or  disavow  his  signature,  2240. 
If  the    party    disavow    his    signature,    it   must  be  proved  by  witnesses  or 

comparison,  2240. 
Sales  or  exchanges  of  real  property  and  slaves,  by  instrument  made  under 

private  signature,  are  valid  against  bona  fide  purchasers  and  creditors,  only 

from  the  day  they  are  registered,  where,  2242. 

SIGNIFICATION. 

Of  the  signification  of  sundry  terms  of  law  employed  in  the  code,  3522,  from 
No.  1  to  32. 

SIGHTS. 

Of  sights  on  the  property  of  a  neighbour,  692,  693. 
V.  View. 

SIMPLE  OBLIGATIONS. 

Of  simple  and  conditional  obligations,  from  2015  to  2037. 
A  simple  obligation  defined,  2015. 

SLAVES. 

A  slave  is  one  who  is  in  the  power  of  a  master  to  whom  he  belongs,  85. 
The  rules  for  the  police,  and  conduct  to  be  observed  with  respect  to  slaves, 
are  fixed  by  special  laws,  172. 


INDEX. 


52 


SLAVES—  ( Contimifid). 

The  slave  is  entirely  subjoet  to  the  Mill  of  his  master,  how,  173;  he  is  iu' 
capable  of  making  any  kind  of  contract  except  for  his  freedom,  1774  1775 
1783,  1785. 

AU  that  a  slave  possesses  belongs  to  his  master,  except  his  ;>(?c«/iMMi,  and  what 
is  meant  hy  pecuJiam,  175. 

He  cannot  transmit  any  thing  by  succession,  17G,  945. 

He  is  incapable  of  exercising  any  public  office  or  private  trust ;  he  cannot  be 
a  witness,  and  cannot  be  a  party  in  any  civil  action,  except  when  he  has 
to  claim  or  prove  his  freedom,  176,  177,  322,  1584,  2260. 

When  slaves  are  prosecuted  in  the  name  of  the  State  for  offences  they  have 
committed,  notice  thereof  must  be  given  to  their  masters,  178. 

How  masters  are  bound  by,  or  answerable  for  the  acts  of  their  slaves  from 
179  to  181,  2300. 

Slaves  cannot  marry  without  the  consent  of  their  masters,  182. 

The  children  born  of  a  mother,  then  in  a  state  of  slaver^',  belong  to  the  mas- 
ter of  their  mother,  183,  492. 

How  slaves  may  be  enfranchised,  from  184  to  192. 
V.  Unfranchisfmcnt. 

Of  the  slave  who  has  acquired  the  right  of  being  free  at  a  future  time,  or  of 
slaves  for  years,  from  193  to  196. 

Slaves  are  immovable  by  the  disposition  of  the  law,  401. 

Children  of  slaves  are  natural  fruits,  but  the  usufructuary  has  only  the  en- 
joyment of  tlieir  labor  or  services,  537,  539. 

The  usufructuary  is  not  bound  to  return  other  slaves  in  the  stead  of  such 
as  have  died,  688. 

In  what  manner  he  who  has  the  use  of  one  or  more  slaves  has  the  right  of 
enjojMng  their  services,  631. 

Slaves  are  incapable  of  inheriting,  045;  they  cannot  receive  by  donations 
inter  vivos  or  causa  mortis,  unless  they  have  been  previousl}^  enfranchised, 
or  are  enfranchised  by  the  act  of  donati<in  itself,  1462. 

Tile  estimated  value  of  slaves  settled  as  a  dowry,  does  not  transfer  their  pro- 
perty to  the  husband,  and  how  they  must  be  restored  after  the  dissolution 
of  the  marriage,  2335,  2346. 

Tlie  liu-<band  is  not  bound  to  supply  the  deficiencies  which  may  have  hap- 
pened among  such  slaves  during  the  marriage,  2351. 

How  the  sale  of  immovable  property  and  slaves  must  be  made,  2415. 

What  are  the  redhibitory  vices  of  slaves,  2500,  2502,  2504,  2505. 

How  the  property  of  slaves  is  acquired  by  prescription,  3435,  3436,  3439, 

3444,  3445,  3405. 
How  the  master  loses  all  right  of  action  to  recover  possession  of  his  slave,  if 
lie  suffer  him  to  enjoy  his  liberty   during  the  time  required  by  law  for 
such  prescription,  3510,  3511. 

SOLIDO  (In). 

V.  Creditors,  debtors,  and  obligations  in  solido. 

SOLVENCY. 

What  it  is,  3522,  No.  28. 

SOUND  MIND. 

To  make  a  donation  either  inter  vivos  or  mortis  causa,  one  must  be  of  sound 

mind,  1461. 
So,  to  be  a  witness  in  civil  matters,  2260. 

STANDING  CROPS, 

Until  they  are  cut  down,  are  considered  as  immovable,  466. 
V.  Fruits. 

STATU  LIBERT, 

Or  slaves  for  a  time,  or  for  years,  who  are  they,  37. 

They  are  capable  of  receiving  by  testament  or  donation,  how,  193,   195. 

They  cannot  be  transjiorted  out  of  the  State,  194. 


522  INDEX. 

STATU  LlBEm—{Co}iti7mcd). 

The  child  born  of  a  woman  aftei  he  has  ac.quiivJ  the  right  of  being  fret 
at  a  future  time,  becomes  free  \t  the  time  fixed  for  her  enfranchise- 
ment,  196. 

SUBMISSION. 

Submission  to  arbitration  defined,  3066. 

Of  the  form  of  that  agreement,  and  who  can  make  it,  3067,  3068. 

What  differences  may  be  submitted  to  arbitrators,  3069,  3070. 

The  power  of  arbitrators  is  limited  by  the  submission,  3071. 

If  the  submission  does  not  limit  any  time,  how  long  the  j^ower  of  the  arbitra- 
tors m;iy  continue  in  force,  3072. 

It  is  usual  to  undergo  a  penalty  of  a  certain  sum  of  money  in  the  sub- 
mission, for  what  purpose,  3073. 

The  arbitrators  ought  to  give  their  award  within  the  time  limited  by  the 
submission,  3090. 

What  are  the  causes  which  put  an  end  to  the  submission,  and  to  the  power 
given  to  the  arbitrators,  3099. 
V.  Arbitration,  arbitrators. 

SUBROGATION,  v.  Payment  with  subrogation. 

SUBSTITUTIONS, 

Are  prohibited,  1507. 

What  dispositions  shall  not  be  considered  as  making  a  substitution, 
1508,   1509. 

SUCCESSIONS. 

The  propert)'  of  things  is  acquired  by  succession,  either  legal  or  testamon- 

tarj',  by  obligations,  or  by  the  operation  of  the  law,  866. 
Of  successions  in  general,  and  of  the  different  sorts  of  successions  and  heirs. 

from  867  to  8SL 
Of  legal  successions,  general  rules,  from  882  to  889. 
Of  representation,  from  890  to  897. 

V.  Riprcsentation. 
Of  successions  falling  to  descendants,  898. 
Of  successions  falling  to  ascendants,  from  899  to  906. 
Of  irregular  successions,  from  911  to  927. 
How    natural    children    are    called    to    the    succession    of     their    natural 

mother,  912. 
How  and  when  such  children  are  called  to  the  succession  of  their  natural 

father,   913. 
How  adulterous  or  incestuous  children  cannot  inherit  the    estates  of  their 

natural  father  or  mother,  914,  915, 
To  whom  belongs  the  estate  of  a  natural  child  deceased  without  posterity, 

916,  917. 
Of  the  security  to  be  given  and  other  formalities   to  be  fulfilled  by  natu- 
ral children   called  to  the  succ(ission  of   their   natural  father  or  mother, 

from  919  to  922  and  926. 
How  and  when  the  surviving   husband  or  wife  inherit  the   estate  of  each 

other,  and  of  the  security  to  be  given  and  formalities  to  be  fulfilled  in 

Buch  a  case,  918,  and  from  924  to  926. 
In  what  manner  successions  are  opened,  fi'om  928  to  943.  ' 

Of  the  incapacity  and  unworthiness  of  heirs,   from  944  to  969. 
Of  the  acceptance  of  successions,  from  970  to  1006. 

V.  Acceptance. 
Of  the  renunciation  of  successions,  from  1007  to  1024. 
Of  the  benefit  of  inventory   and   the   delays   for   deliberating,    from  1025 

to  1067. 

V.  Benejit  of  inventory,  term  for  deliberating. 
Of  the  seals,  and  of  the  affixing  and  taking  off  the  same,  from  1068  to  1087. 

V.  SeaU. 
Of  the  administration  of  vacant  and  intestate  successions,  general  disposi- 
tions, from  1088  to  1092. 


INDEX.  52i 

SUCCESSIONS— (Couiwiif  J). 

Of  tlic  iuventory  of  vacant  and  intestate  successions  subject  to  administra- 
tion, from  1093  to  llO-t. 
Of  the  appointment  of  curators  to  such  successions,  and  of  the  security  to 

be  given  by  them,  from  1105  to  1125. 
Of  the  duties  and  jiowers  of  sucli  curators,  from  1126  to  1148. 
Of  the  causes  for  which  such  curators  may  be  dismissed  or  superseded,  from 

1149  to  1152. 
Of  the  sale  of  the  effects,  and  of  the  settlement  of  the  successions  thus  ad- 
ministered, from  1153  to  1178. 
y^         Of  the  account  to  be  rendered  by  the  curators,  and  tlie  commission  due  to 

them,  from  1179  to  1196. 
Of   the    duties  of  curators   whose    administration  is  prolonged  beyond  the 

legal  term,  from  1197  to  1203. 
Of  the  appointment  of   counsel  to  absent  heirs,  and  of  their  duties,    from 

1201  to  1213. 
Of  the  nature  of  partition,  and  of  its  several  kinds,  from  1214  to  1229. 
Among  wliat  persons  partition  can  be  sued  for,  from  1230  to  1244. 
In  what  manner  tlie  judicial  partition  is  made,  from  1245  to  1268. 
How  the  notary  is    bound  to  proceed  in  the  judicial  partition,   from  1269 

to  1304. 

V.  Partitions. 
Of  collations,  wliat  collation  is,  and  by  whom  it  is  due,  from  1305  to  1319. 
To  whom  collation  is  due,   and  wliat   things  are  subject  to  it,   from   1320 

to  1328. 
How  collations  are  made,  from  1329  to  1367. 

V.   Collations. 
Of  the  p.ayment  of  debts,  from  1368  to  1419. 

V.  Debts. 
Of  the  warranty  of  partitions,  from  1420  to  1434. 
Of  the  rescission  of  partitions,  from  1435  to  1462. 

V.  Tcstauientary  successions  or  testaments. 
SUCCKSSOIl. 

What  is  meant  by  successor,  3522,  No.  29. 
SUCH  AS. 

These  words  used  to  give  some  examples,  are  never  exclusive  of  other  cases 

to  which  the  rule  may  apply,  3522,  No.  31. 
SUGGESTION,  v.  Cajytation. 
SUPERINTENDENT. 

Of  the  su]ierintendent,  who  is  named  to  the  interdicted  insane  person,  in  order 

to  see  in  what  manner  he  is  treated,  and  report  to  the  judge,  411. 

SUPPLIES  OF  PROVISIONS. 

The  claims  for  sujiplios  of  provisions  are  privileged,  how,  3158,  from  3175 

to  3180. 
Such  claims  are  prescribed  against  by  one  J'car,  3499. 

SUPPORT  (Riglit  of). 

A  sort  of  urban  servitude,  707  ;  in  what  it  consists,  108. 

SURETY,  V.  Security. 

SURETYSillP. 

Of  the  nature  and  extent  of  suretyship,  from  3004  to  3013. 

"Who  may  be  surety  for  another,  and  rules  relative  to  that  contract,  from 

3004  to  3013. 
Of  the  effects  of  suretyship  between  the  creditor  and  the  surety,  from  3014 

to  3020. 
Of  the  effects  of  suretyship  between  the  debtor  and  the  surety,  from  3021 

ia  3026. 
Of  the  effects  of  suretyship  between  the  sureties,  3027. 
Of  the  extinction  of  suretyship,  from  3028  to  3032. 
Of  the  legal  and  judicial  sureties,  from  3033  to  3037. 


524  INDEX. 

SURGEONS. 

A  surceon  cannot  derive  any  benefit  from  a  donation  inter  vivos  or  mortis 
causa  made  to  him  by  a  person  wliom  he  attended  in  his  last  sickn/iss,  ex- 
cept in  certain  cases,  1476. 

Surgeons  have  a  privilege  for  the  charges  due  them  for  having  attended  a  de- 
ceased person  in  his  last  sickness,  ?j158,  31G9. 

The  actions  of  surgeons  for  their  charges  are  prescribed  against  by  three 
years,  3503. 

SURVEYORS. 

Of  their  duties  when  they  are  called  to  fix  the  limits  of  two  contiguous  lands 
or  more,  from  829  to  833. 

SURVIVING  HUSBAND  AND  WIFK 

In  what  case  the  surviving  husband  or  wife  inherit  the  estate  of  the  deceased, 
and  in  what  manner  he  or  she  must  be  put  in  possession  of  such  estate, 
918,  and  from  923  to  920. 

SURVIVORSHIP. 

Of  the  presumption  of  survivorship,  when  two  or  more  persons  have  perished 
in  the  same  event,  from  930  to  933. 

SYNALLAGilATIC. 

Of  synallagmatic  of  bilateral  contracts,  I'ISS. 


T 

TACIT. 

What  is  meant  by  the  word  tacit  as  used  in  law,  3522,  No.  30. 

TAXES. 

The  usufructuary  is  liable  to  pay  the  taxes  imposed  on  the  thing  subject  to 
the  usufruct,  572. 

TEACHERS  OR  PRECEPTORS, 

Are  answerable  for  the  damage  caused  by  their  scholars,  when,  2299. 

Of  the  j)rivilege  of  the  teacliers  wlio  receive  into  their  house  young  persons 
to  be  brought  up,  fed,  and  instructed,  3179. 

The  claims  of  teachei's  for  lessons  wliich  they  gave  by  the  month,  are  pre- 
scribed by  one  year,  3'199 ;  and  by  three  years  for  lessons  by  the  year  or 
quarter,  3503. 

TENDER  OF  PAYMENT. 

Of  tender  of  payment  and  consignment,  and  their  eifect,  31G3. 

TERM. 

The  time  given  or  limited  for  the  performance  of  an  obligation,  is  called 

term,  2043. 
Of  limited  and  unlimited  obligations  as  to  the  term  of  their  performances, 

from  2043  to  205G. 
Of  the  term  for  deliberating,  what  is  understood  thereby,  102G. 
What  is  to  be  done  by  the  heir  who  wishes  to  enjoy  the  term  for  deliberating, 

1027,  1028. 
What  are  the  duties  of  the  judge,  when  the  heir  claims  a  term  to  deliberate. 

from  1031  to  1040. 
What  is  the  time  which  is  allowed  to  the  heir  to  deliberate  whether  he  will 

accept  or  reject  the  succession,  1043. 
During  the  term  for  deliberating,  no  judgment  can  be  rendered  against  the 

heir;  wiiat  may  be  done  in  the  mean  time  by  the  creditors,  1040. 
At  the  expiration  of  tlie  term  for  deliberating,  tlie  creditors  may  compel  tho 

heir  to  decide  whether  he  accepts  or  rejects  the  succession,  how,  1048. 
Prescription  runs  during  tlie  term  for  deliberating,  3493. 

V.  Beneficiary  heir,  buiefit  of  hiventory. 


INDEX.  52£ 

TESTAMENT, 

Defined,  1564. 

No  di,ipositioi  mortis  causa  shall  be  henceforth  made  otherwise  than  bv  last 

•will  or  test iment,  1503.  ^ 

A   testament    cannot    be    made   by   the   same    act,    by   two   or   more   per- 

sons,  1565.  ■* 

The  custom  of  willing  by  testament  by  the  intervention  of  a  commissary  or 

attorney  in  i  ct,  is  abolished,  1566.  • 

General  rules  on  the  form  of  testaments,  from  1567  to  1589. 
The  custom  of  making  verbal  testaments  is  abrogated,  1569. 
Of  the  several  kinds  of  testaments,  1567. 

How  nuncupative  testaments  must  be  made,  from  1570  to  1576.     . 
How  the  mystic  or  secret  testament  must  bo  made,  from  1577  to  1580. 
How  tlie  olographic  testament  must  be  made,  1580. 
Rules  applicable  to  all  testaments,  1568,  1582,  1583. 
Of  th^  persons  who  are  absolutely  incapable'  of  b*ing  witnesses  to  a  testa- 

111  cut,  1  oof>. 

Testa.nents  (the  mystic  only  excepted)  cannot  be  witnessed  by  those  who  are 
instituted  heirs  or  named  legatees  therein,  1585,  1586. 

What  IS  understood  by  the  res^idence  of  the  witnesses  in  the  place  where  the 
testament  is  executed,  1587. 

The    formalities   to    which    testaments    are    subject    must    be    strictly    ob- 
served, 1588.  J       " 

How  testaments  made  in  foreign  countries,  or  in  the  other  States  of  the  Union 
may  ta^e  efteet  here,  1589.  ' 

Of  particular  rules  on  the  form  of  testaments  made  by  persons  employed  in 
armies  on  the  held,  or  m  a  militaiy  expedition,  from  1590  to  1593 

Ot  testaments  made  at  sea,  from  159-1  to  1597. 

Of  testamentary  dispositions,  1598. 

Of  universal  legacies,  from  1599  to  1603. 

Of  legacies  under  an  universal  title,  from  160-t  to  1608. 

Of  disinheiison,  from  1609  to  1617. 

Of  particular  legacies,  from  1618  to  1630. 

Of  the  opening  and  proof  of  testaments,  from  1637  to  1650,  1681    168'^ 

Ot  testamentary  executors,  from  1651  to  1680.  ' 

Of  the  revocation  of  testaments  and  of  their  caducity,  from  1683  to  1704 

General  rules  for  the  interpretation  of  legacies,  from"  1705  to  1716 

V.  Disinherison,  legacies,  mystic,  nuncupative  and  olographic  testaments    tcs- 
tametitary  executors.  ' 

TESTAMENTARY  DISPOSITIONS,  1598. 
V.  Legacies. 

TESTAMENTARY  EXECUTORS. 

The  testator  may  name  one  or  more  testamentary  executors,  for  what  pur- 
pose,  1651.  " 

The  testator  may  give  his  testamentary  executor  the  seizin  of  the  whole  or  a 

r?.Q   1^!.'^  succession,  in  what  manner,  and  how  long  such  seizin  lasts,  1662 

Who  cannot  be  testamentary  executors,  1656,  1658. 
How  a  married  woman  may  be  a  testamentary  executor   1657 
Of  the   duties   of    the    testamentary   executor,    and   of   the   account  he   is 
bound  to  render  of  his  administration,  from  1659  to  1663,  and  from  1665 

Tlie  testamentary  executor  is  not  bound  to  accent  the  executorsliin  •  nor  to 

give  security  when  he  does  accept  it,  1670.  i  .  i." 

In  ^ what  case  the  judge  may  appoint  a  testamentary  executor,   and  how, 

Tlic  powers  of  the  testamentary  executor  do  not  go  to  his  heirs,  1073 

When  there  are  several  testamentary  executors  who  have  accepted,  in  what 

manner  they  may  act,  and  how  they  are  bound  in  solido,  1074 
Of  the  expenses  made  by  the  executor  which  must  be  defrayed  out  of  the  suc- 
cession, and  of  the  commission  allowed  to  him,  from  1075  to  1080 


526  INDEX. 

TESTIMONIAL  OR  ORAL  PROOF. 

The  sale  or  transfer  of  immovable  property  or  slaves,  cannot  oe  proved  by 
oral  testimoii}-,  except  in  certain  cases,  2255. 

Ifo  parol  evidence  can  be  admitted  against  or  beyond  what  is  contained  in 
the  ads,  2256. 

How  agreements  relative  to  personal  property  may  be  proved  by  oral  evi- 
dence, 2257. 

Of  the  oral  evidence  which  is  admitted  in  cases  where  a  wi'itten  instrument 
has  been  lost  or  destro^-ed,  2258,  2259. 

"Who  are  the  competent  witnesses  who  may  be  admitted  in  civil  matters,  from 
2260  to  2262. 
V.   Witness. 

THING  ADJUDGED. 

A  legal  presumption  results  from  the  authority  of  the  thing  adjudged,  2264. 

THINGS. 

Of  the  division  of  things,  from  439  to  452. 

Of  things  which  are  for  the  common  use  of  every  hodj,  from  441  to  443, 

Of  public  things,  from  444  to  446. 

Of  things  holy,  sacred,  and  religious,  447. 

Of   things  which  belong  in  common  to  the  inhabitants  of   cities    or   other 

places,  449. 
Of  private  estates,  450. 
Of  corporeal  and  incorporeal  things,  451. 
Of  immovables,  from  453  to  463. 

V.  Immovables. 
Of  movables,  from  464  to  472. 

V.  Movables. 
Of  things  on  estntes  considered  in  their  relation  to  those  who  possess  them, 

from  473  to  479. 

THIRD  PERSONS. 

What  is  meant  by  third  persons,  3522,  No.  32. 

THIRD  POSSESSORS. 

Of  tlie  effect  of  mortgages  against  third  possessors,  and  of  the  hypothecary 
action,  from  3362  to  3373. 

THREATS,  V.  violence. 

TITLE,  v.  just  title. 

TRADITION,  V.  delivery. 

TRANSACTION  OR  COMPROMISE, 
Defined,  and  its  form,  3038. 

Who  is  and  Avho  is  not  capable  of  making  a  compromise,  3039. 
What  differences  are  deemed  to   be   regulated  by  the  compromise,    8040, 
3041. 
Of  the  penaltj'  which  may  be  added  to  the  compromise  in  order  to  enforce  its 

execution,  3042. 
Of  the  effect  of  a  compromise,  from  3043  to  3045. 
A  compromise   cannot  be   rescinded  on   account   of   error  in  law,    or  of 

lesion,  3045. 
For  what  other  causes   compromises  may  be  annulled  or  not,   from  3046 

to  3050. 

TRANSFER. 

V.  Assignment. 

TREASURE. 

The  usufructuary  has  no  right  to  the  treasure  which  may  be  discovered 
in  the  land  of  which  he  has  the  usufruct,  unless  he  himself  has  discovered 
it,  546. 

Of  the  right  of  him  who  finds  a  treasure  in  his  own  land,  or  on  land  belong- 
ing to  nobody,  or  to  other  persons,  3386. 


INDEX.  527 

TREBELLIANIC  TORTION. 

The  instituted  heir  has  no  longer  any  right  to  the  trebellianic  portion,  1507. 

TREES. 

Standing  trees,  and  their  fruits  not  gathered,  are  considered  as  immovable ; 
when  cut  down  the}'  are  movable,  456. 
•     The  usufructuary  may  cut  trees  on  the  land  of  which  he  has  the  usufruct,  lor 
the  amelioration  and  cultivation  of  the  laud,  644. 

No  proprietor  in  the  cities  can  plant  trees  on  the  boundary  line  which  sepa- 
rates his  estate  from  that  of  his  neighbor,  687. 

If  the  neighbor  suffers  any  damage  from  them,  he  may  oblige  the  owner  to 
have  them  torn  up,  or  the  branches  or  roots  of  them  cut  off,  how,  087. 

TUTOR. 

Of  the  duties  of  the  tutor  by  nature,  209. 

The  tutor  by  will  is  not  compelled  to  accept  the  tutorship,  277. 

Of  the  duties  of  the  dative  tutor,  293. 

Of  liis  powers  and  functions,  from  297  to  299. 

Who  are  the  persons  incapable  of  being  tutors,  322. 

Who  are  the  (lersons  who  arc  excluded,  or  who  may  be  removed  from  tutor- 
ship, from  323  to  320. 

Of  the  administration  of  tutors  in  general,  fi'om  327  to  356. 

A  tutor  must  take  care  of  the  person  of  the  minor,  and  represents  him  in  all 
civil  acts,  327. 

He  must  administer  the  minor's  estate  as  a  prudent  administrator,  327. 

He  cannot  purchase,  lease,  or  hire  the  property  of  the  minor,  327. 

Of  the  oath  he  must  t.ake,  328.  • 

Of  tlic  inventorv  wliich  the  tutor  must  make,  and  of  the  surety  he  is  bo\md 
to  give,  from  329  to  332. 

How  and  when  the  tutor  must  cause  the  movable  effects  of  the  minor  to  bo 
sold,  333.        - 

In  what  case  the  immovables  and  slaves  of  the  minor  may  be  sold,  and  with 
what  formalities,  from  334  to  339. 

How  the  tutor  may  let  out  the  property  of  the  minor,  and  how  he  must  in- 
vest the  revenues  which  exceed  the  expenses  of  his  ward,  340,  341. 

How  the  expenses  for  the  support  and  education  of  the  minor  ought  to  be  re- 
gulated, 343. 

Of  the  commission  allowed  to  the  tutor,  343. 

How  the  tutor  administers  the  affairs  of  his  ward,  344. 

How  he  may  accept  or  reject  the  successions  which  have  fallen  to  hrs  ward, 
from  345  to  347. 

How  he  may  borrow  money,  purchase  immovables  and  slaves,  or  compromise 
for  the  minor,  348. 

How  he  may  accept  bargains  and  donations  made  to  his  ward,  349. 

The  tutor  cannot  in  any  case  dispose  gratuitously  of  the  movable  or  im- 
movable property  of  the  minor  or  any  part  thereof,  349. 

Of  the  account  he  is  bound  to  render,  from  350  to  353. 

How  the  property  of  the  tutor  is  tacitly  mortgaged  in  favor  of  the  minor 
and  from  what  time,  354. 

Every  agreement  made  between  the  tutor  and  the  minor  who  has  arrived  at 
the  age  of  majorit\%  is  null,  unless  the  same  was  entered  into  after  the 
rendering  of  a  full  account  of  the  tutor's  administration,  355. 

Tlic  action  of  the  minor  against  his  tutor  I'cspecting  the  acts  of  tutorship,  is 
prescribed  by  four  years,  356. 
V.  Tutorship. 

TUTORSHIP. 

General  dispositions  thereon,  from  263  to  206. 

There  arc  four  sorts  of  tutorships,  204. 

Of  tutorship  by  nature,  from  207  to  274. 

Of  tutorship  by  will,  from  275  to  280. 

Of  tutorship  by  the  effect  of  tlie  law,  from  281  to  287. 

Of  dative  tutorship,  from  288  to  289. 


528  INDEX. 

TVTOR?>lIir—{Conti7iucd). 

Of  the  under  tutor,  from  300  to  304, 

V.   Under  tutor. 
Of  family  meetings,  from  305  to  311. 

V.  Family  inectings. 
Of  the  causts  which  dispense  or  excuse  from  the  tutorship,  from  312  to  821. 

V.  Causes. 
Of  the  incapacity  for,  the  exclusion  from,  and  deprivation  of  tutorship,  from 

322  to  32(3. 
V.  Removal. 
Of  the  administration  of  the  tutor,  from  32'7  to  356. 

V.  Tutor.     V.  Curator  of  minors. 


u. 

UMPIRE. 

Of  the  umpire  who  is  appointed  in  case  the  arbitrators  cannot  agree,  from 
3083  to  3086. 

UNDERTAKER. 

Of  the  right  of  the  iindertaker  or  woi'kman  who  has  made,  at  tiie  instance  of 

the  usufructuary,  any  building  or  work  or  improvement  on  the  property, 

and  who  is  unpaid  at  the  expiration  of  the  usufruct,  from  591  to  51)3. 
An  undertaker  may  agree  either  to  furnish  his  work  and  industry  alone,  or  to 

furnish  also  the  materials,  2728. 
If  the  work  be  destroyed  previous  to  its  being  delivered  to  the  owner,  on 

whom  falls  the  loss,  from  2730  to  2732. 
Of  the  responsibility  of  the  undertaker  or  workman,  if  the  woi-k  fall  to  ruin, 

either  in  part  or  in  whole,  ou  account  of  the  badness  of  the  workmanship, 

and  how  long  it  lasts,  2733.  ^ 

The  undertaker  or  other  workman,  who  lias  agreed  to  make  a  building  by 

the  job,  according  to  a  plot,  cannot  claim  an  increase  of  the  price  on  the 

plea  of  the  original  plot  having  been  changed  and  extended,  except  in  cer 

tain  cases,  2734,  2735. 
How  the  jn-oprietor  has  a  right  to  cancel  at  pleasure  the  bargain  he  has  made, 

even  when  the  work  has  already  been  commenced,  2736. 
Contracts  for  hiring  out  work  are  cancelled  by  the  death  of  the  undertaker 

or    workman,    unless    the    proprietor    consent    that    the    work    be    con 

tinned,  2737. 
Obligations  of  the  proprietor  in  either  case,  2737. 
The  undertaker  is   responsible  for  the   deeds  of  the  persons  employed  by 

him,  2739. 
Of  the  liability  of  the  undertaker  in  case  he  fails  to  do  the  work  he  has  con- 
tracted for,  or  does  not  execute  it  in  the  manner  and  at  the  time  agreed 

on,  2740. 
Of  the  privilege  of  the  undertaker  for  the  payment  of  his  labor,  2743. 
Of  the  recording  of  agreements  or  undertakings  for  work  when  they  exceed 

five  hundred  dollars,  2746. 

V.  Plots  for  buildings,  workmen. 

UNDER  TENANT  OR  UNDER  LESSEE. 

The  privilege  of  the  lessor  affects  not  only  the  movables  of  the  lessee,  but  those 
of  the  under  lessee  and  other  persons,  when  their  goods  are  contained  ia 
the  house  or  store,  2677. 

UNDER  TUTOR. 

In    every    tutorship   there   must   be    an   under   tutor    appointed    by    the 

judge,  300. 
Of  the  duties  and  powers  of  the  under  tutor,  from  301  to  303 ;  and  when  they 
are  at  an  end,  304. 

UNILATERAL  CONTRACT, 
Defined,  1758. 


INDEX.  529 

UNIVERSAL  LEGACIES  OR  LEGATEES, 

Defined,  1599. 

In  ■what  cases  the  universal  legatee  is  bound  to  demand  the  de.ivery  of  the 

estate  beqxieatiied  to  liim,  from  IGOO  to  1602. 
IIow  tlie  universal  legatee,  who  concurs  with  a  forced  heir,  must  contribute 

to  the  payment  of  the  debts  of  the  succession,  1603. 
Y.  Legatees. 

UNIVERSAL  PARTNERSHIPS. 

Ordinary  partnerships  are  divided  into  universal  and  particular  partner- 
ships,* 27  97. 
Universal  partnership  defined,  2800. 
Its  particular  rules,  from  2801  to  2805. 

UNLIMITED  OBLIGATIONS. 

Of  limited  and  unlimited  obligations  as  to  the  time  of  their  performance,  from 
2043  to  2056. 

UNWORTIIINESS, 

Of  lieirs,  of  the  heirs  who  are  called  unwortli}',  958. 

Of  tlie  difference  between  being  unworthy  or  incapable  of  inheriting,  959. 

Who  are  the  persons  unworthy  of  inlieriting,  960,  962. 

The  unworthincss  is  never  incurred  by  the  act  itself,  it  must  be  pronounced 
by  the  court  in  a  suit  instituted  for  that  purpose,  961. 

Effects  of  the  judgment  by  which  the  heir  is  declared  unworthy  of  inheriting, 
from  963  to  967. 

Who  may  sue  in  order  to  cause  the  heir  to  be  declared  unworthy  of  inherit- 
ing, 968. 

Of  the  reconciliation  wbich  is  a  bar  to  that  action,  969. 

URBAN  SERVITUDES, 
Defined,  706. 
How  many  kinds  there  are  of  them,  707. 

USAGE. 

Of  the  obligation  to  perform  as  incidents  to  a  contract,  all  that  is  required  by 
equity,  usage,  and  law,  from  1958  to  2962. 

When  the  intent  of  the  parties  is  evident,  neither  equitj'  nor  usage  can  be  re- 
sorted to,  1958. 

What  is  understood  by  the  word  usage  in  such  a  case,  1901. 

USE. 

Right  of  use  defined,  621. 

The  right  of  use  and  habitation  is  established  and  extinguished  in  the  same 

manner  as  the  usufruct,  623,  626,  627,  630. 
Of  the  rights  of  the  person  liaving  the  use,   624,  625,  629;  and  from  631 

to  63.5. 
What  distinguishes  the  usufruct  of  a  property  from  the  use  of  it,  628. 
Of  the  duties  of  him  who  has  the  use,  640,  C41. 

USUFRUCT, 

Defined.  525. 

Tiierc  are  two  kinds  of  usufruct,  526  to  528. 

By  whom,  to  whom,  and  liow  usufruct  may  be  established,  from  530  to  532, 

534,  535. 
Upon  what  things  usufruct  may  be  established,  533. 
Of  the  rights  of  the  usufructuary,  from  536  to  549 ;  and  of  his  obligations 

from  550  to  593. 
Of  the  obligations  of  the  owner,  from  594  to  600. 
How  usufruct  expires,  from  601  to  620. 

USUFRUCTUARY. 

The  father  and  mother  who  have,  during  marriage,  tlie  enjoyment  of  the 
estate  of  their  children,  are  liable  to  the  same  obligations  to  which  the 
usufructuaries  are  subjected,  240. 
Of  the  right  of  tlie  usufructuary-,  from  536  to  549 
34 


530  INDEX. 

\JSUFRUCTUA.'RY—{Co7itimied). 

All  kinds  of  fruits  natural,  cultivated,  or  produced  during  the  existence  of  the 
usufruct,  belong  to  the  usufructuary,  536,  540. 

What  is  understood  by  natural,  ciiltivated,  and  civil  fruits,  537,  538. 

The  children  of  slaves  subject  to  usufruct,  who  are  born  during  its  duration, 
belong  to  the  owner,  the  usufructuary  has  only  the  enjoyment  of  their  la- 
bor and  services,  539. 

If  the  usufn;ct  includes  things  which  cannot  be  used  without  being  expended 
or  consumed,  the  usufruetuarj'  may  dis])Ose  of  them ;  under  what  obliga- 
tions, 542. 

What  is  the  right  of  the  usufructuarj-,  if  the  iisufruct  comprehends  things 
which  are  gradually  impaired  by  wear  and  decay,  543. 

The  usufructuary  has  a  right  to  draw  all  the  profits  which  are  usually  pro- 
duced by  the  thing  subject  to  the  usxifruct ;  in  what  manner,  544. 

He  has  the  right  to  the  enjoyment  and  proceeds  of  mines  and  quarries,  as  well 
as  of  the  increase  broui^ht  by  alluvion,  but  not  to  the  islands  formed  in  a 
stream  opposite  to  sucli  land,  545,  546. 

The  usufructuary  has  no  right  on  the  treasure  which  may  be  discovered 
in  the  land  of  which  he  has  the  usufruct,  unless  he  himself  has  discovered 
it,  546. 

The  \iDufructuary  enjoys  the  right  of  servitude,  waj's  or  others  due  to  the  in- 
heritance of  which  he  has  the  usufruct,  547. 

He  may  lease  to  another,  or  even  sell  or  give  away  his  right;  effects  of  such 
acts,  548. 

What  actions  the  usufructuary  may  exercise,  549. 

Of  the  obligations  of  the  usufructuarj',  from  550  to  593. 

Of  the  inveniA.  'y  he  must  take,  and  of  the  security  he  is  bound  to  give,  and 
how  he  may  give  a  mortgage  in  lieu  of  such  security,  from  550  to  555. 

If  the  usufructuary  does  not  give  security,  what  is  to  be  done;  and  of  the 
effect  of  not  giving  securitj^  from  556  to  557,  559. 

Of  the  obligation  of  the  usufructuary,  and  of  his  responsibility,  558,  560,  and 
from  562  to  564. 

The  usufructuary  may  make  necessary  and  useful  improvements  and  repairs 
of  the  thing,  but  he  cannot  change  its  condition,  561. 

Wliat  repairs  the  usufructuary  is  bound  to  moke,  from  565  to  5*71. 

Of  the  other  obligations  of  the  usufructuary,  from  572  to  579  ;  and  from  582 
to  688. 

How  the  usufructuary  under  an  universal  title  is  bound  to  contribute  to  the 
payment  of  the  debts  of  the  testator,  680,  581. 

At  the  expiration  of  the  iisufruct,  the  usufructuary  has  no  right  to  claim  any 
compensation  for  the  improvements  he  has  made,  but  he  must  abandon 
them  to  the  owner,  except  certain  articles  which  he  may  take  away, 
589,  590. 

Of  the  action  of  the  undertaker  who  made,  at  the  instance  of  the  usufruc- 
tuary, any  building  or  other  work  on  the  property,  and  who  is  unpaid  at 
the  expiration  of  the  usufruct,  from  591  to  593. 
V.  ilsufruct. 

UTENSILS. 

The  utensils  necessary  for  working  cotton  and  other  manufactures,  are  im- 
movable, 459. 

V.  Implements  of  husbandry. 


V. 

VACANT  ESTATES. 

Of  the  administration  of  vacant  estates,  and  estates  of  which  the  heirs  are 

absent,  from  1068  to  1213. 
Of  the    administration  of  vacant   and  of  intestate   successions,    from   1088 

to  1213. 
What  is  understood  by  a  vacant  estate,  1083. 
What  is  understood  by  a  succession  ab  intestato,  1089. 


INDEX.  531 

VACANT  ESTATES— (Continued). 

?/  ,y'Y'™/-?^'''i"t  a»'^  intestate  successions  are  managecl,  1090,  1091 
It  all  the  heirs  are  absent  and  minors,  there  is  no  occasion  for  the  apnoint 
nient  of  a  curator  to  the  absent  heirs,  whj^  1092.  appomt 

Of  the  curators  to  vacant  successions  and  to  absent  heirs. 
V.  (Jurators. 

VENDOR,  V.  sale,  sdla: 

VICES,  V.  redhibition,  redhibitory  vices. 

VIEW. 

Tlie  right  of  view  is  one  of  tlie  principal  kinds  of  urban  servitudes,  707 
What  IS  understood  by  view,  711.  ' 

Servitudes  of  view  are  of  two  kinds,  712. 
VIOLENCE. 

Violence  and  threats  are  causes  which  invalidate  a  contract,  1813. 

Ut  the  defect  of  consent  arising  from  violence  or  threats,  from  1844  to  1853 

""utriirjsirt-o^tv'^^^""^^  ^^  ^^^^^^^  — '-^  '^  '^^'^^^  ^  -- 

^Ts''?,!^'r''''*'°'   "PPli'^-'^We    to   error,   violence,   and  fraud   in   contracts, 

VOYAGE. 

AVhat  is  understood  by  tlie  voyage  of  a  ship  or  vessel,  3212. 

w. 

WAGES. 

The  wages  of  servants  are  privileged,  how,  3158,  3173   3174 

Of  the  privilege  of  the  master  and  crew  of  a  ship  or  vessel,  3204. 

In  what  order  the  wages  of  servants  and  seamen  are  paid,  3221 

3499!'3500    '  ''''''^''  ""^  ''"''''"^'  """'^  '*'''°''''  ^''^  prescribed  by  one  year, 
WALLS  IN  COMMON. 

Of  the  walls  in  common,  rules  relative  thereto,  from  671  to  681. 
WARRANTY. 

Of  the  warranty  in  matters  of  partition,  from  1420  to  1434 

Ot  the  warranty  in  case  of  eviction  of  a  thing  sold,  from  2476  to  2495 
V.  HjViction. 

Of  the  warranty  in  case  of  redhibitory  vices. 
V.  Redhibition,  redhibitory  vices. 
WASTE. 

^  fructreil"  '°"'°''""^  ^^  *''«  usufructuary  on  the  thing  subject  to  the  usu- 
WATER. 

Of  the  right  of  the  owner  whose  estate  borders  on  running  water,  or  throuch 
•whose  estate  water  runs,  657.  ^  ""i-ti,  ui  uirougn 

WATERING. 

The  riglit  of  watering  is  a  sort  of  rural  servitudcL  717 
In  what  it  consists,  721, 

WEARING  APPAREL,  v.  linen  and  clothes. 
WELL. 

When  a  person  wishes  to  dig  a  well,  at  what  distance  from  the  wall  held  in 
common  he  must  do  it,  and  in  what  manner,  688,  691. 


532  INDEX. 

WIDOW,  V.  ir«/<-. 

WIFE. 

Of  liusliaml  and  wife,  v.  husband  and  wife. 

Of  the  duties  of  the  wife,  122. 

How  she  must  be  nuthorized  by  her  husband,  or  in  cnse  of  liis  refusal  or 

absence,  by  the  judge,  from  123  to  131,  1467,  1779,  1<'80,  2338,  3339. 
The   wife   may   make   her   testament   without   the    authority   of    her    hus- 
band, 132. 
At  the  expiration  of  wlmt  time  the  wife  may  be  at  liberty  to  contract  another 

marriage,  134. 
For  what  causes  the  wife  may  claim  her  separation  from  bed  and  board,  from 

137  to  139. 

V.  Separation  from  led  and  board. 
Of  the  rights  of  the  wife  with  respect  to  the  tutorship  of  her  children. 

V.  Mother. 
Of  the  separate  property  of  the  wife,  2315. 

In  what  cases  the  dotal  effects  may  be  alienated  by  the  wife  or  with  her  con- 
sent, from  2338  to  2;;40. 
Of  the  rights  of  the  wife  at  the  time  of  dissolution  of  the  marriage  with  respect 

to  dowry,  from  2346  to  2351. 
Of  the  mortgage  and  privilege  of  the  wife  for  her  dowry,  2355,  2366,  3158, 

3182,  3221. 
Of  the  rights  of  the  wife  upon  her  paraphernalia  or  extra-dotal  property,  2361, 

2364,  2365,  2367,  2368. 
Tlie  wife  or   her   heirs   may   exonerate   themselves  from  the  debts  of  the 

community,    by   renouncing  such  community,  from  2379  to   2384,   2388, 

2392. 
How  the  wife  may  lose  the  riglit  of  renouncing,  2381,  2386,  2387,  2389. 
The  creditors  of  tlie  wife  may  attack  the  renunciation  which  she  or  her  heirs 

have  made  with  a  view  to  defraud  them,  2390. 
If  the  dowry  be  exposed  to  be  lost,  the  wife  may  sue  for  a  separatibn  of  gooda 

from  her  husband,  and  in  wiiat  manner,  2345  ;  and  from  2399  to  2412. 

WILD  BEASTS  AND  BIRDS. 

What  beasts  are  considered  as  wild,  and  in  what  manner  their  property  is 
acquired,  3378,  3380. 

WITNESSES. 

Who  may  be  a  witness  to  a  testament,  from  1584  to  1585,  1641. 
Who  is  a  competent  witness  in  civil  matters,  2260,  2262. 

WOMEN. 

Of  the  essential  differences  which  the  law  has  established  between  men  and 
women,  25. 

Woman  cannot  be  appointed  to  any  public  office,  nor  perform  any  civil  func- 
tions, 25. 

Women,  except  the  mother  and  grandmother,  cannot  bo  appointed  tu- 
tors, 322. 

Women  cannot  be  witnesses  to  a  testament,  1684. 

WORKMEN. 

What  action  the  workmen  Avho  have  boon  cnijiloycd  in  the  construction  of  a 

building  or  other  works  undertaken  by  the  job,  may  have  against  the  pro- 
prietor of  the  house  on  which  they  have  worked,  2741. 

The  workmen  and  persons  furnishing  materials  who  have  contracted  with  the 
undertaker,  have  no  action  against  the  owner,  but  they  may  cause  the 
moneys  due  to  the  undertaker  to  be  seized,  2744. 

Pa^'ments  made  by  tiio  proprietor  to  the  undertaker  by  anticipation,  are  con- 
sidered witii  regard  to  workmen,  and  to  those  who  have  f-.irnished  materials, 
as  not  made,  2745. 

Workmen  employed  in  the  construction  or  repair  of  ships  and  vessels,  enjoy 
a  privilege  for  the  price  of  their  labor,  2478. 

The  actions  of  workmen  for  what  is  due  to  them,  are  prescribed  by  one 
year,  3499,  v.  undertaker. 


INDEX.  533 

WORKS. 

Agreements  or  undertakings  for  work  exceeding  five  hundred  dollars,  must 
be^i-educed  to  writing,  and  registered  with  the  recorder  of  mortgages, 

For  the  undertakings  not  aniounting  to  five  hundred  dollars,  their  recordintr 
19  dispensed  with   but  their  privilege  i.s  prescribed  by  six  months,  2747. 

^Vorkmen  employed  in  the  construction  or  repair  of  ships  and  boats  are  also 
dispensed  with  that,  formahty,  whatever  may  be  the  amount  of  their  in- 
terest, but  their  privilege  is  at  an  end  if  thev  suffer  the  ship  to  depart 
without  exercising  their  claim,  2748.  ^        "'-P»iw 

V.  iVew  works,  constructions. 


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